HomeMy WebLinkAbout1977-09-27 Info PacketCity of Iowa City
MEMORANDUM
DATE: October 6, 1976
TO: City Council `�'�
FROM: City Dlanager N�
RE: Citizens Advisory Committee
Recently I was reviewing the report of the Citizens Advisory Committee
to the City Council of April 1964, entitled "Iowa City Looks at Its Future."
While progress has been made, it is interesting to note how many recommenda-
tions remain current. The summary recommendation pages are attached for
your information.
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RECONMIUAFIONS FOR CMMLINITi ACHTEMIENI
REGARDING CITY ADHINISHATION
1. A major reorganization of city governmental scructare-making boards and
commissions strictly advisory in nature and vesting all administrative authority
in a staff selected by the City Council.
2. The city's sidewalk program should be extended to provide sidewalks in
all parts of the city in order to insure the safety of the children of this
concrun i ty .
3. Erection of well displayed and attractive signs pointing visitors to
the central business district and once in the central business district to
city maned parking Lots.
4. There should be an expert study made of city school crossing signs, signals
and street markings in order to bring them up to a uniform standard and ade-
quacy.
5. Refuse coLLoction in the city of Iowa City shouLd be placed on a fee basis
and a thorough study of service charges and fees as presently used by the city
in order to determine which are adequate and where new service charges are needed.
6. Adoption of an ordinance governing standards of emergency equipment and
training of persnanel operating amhulances within the city of Iowa City.
7. prompt and continued action persuant to adoption of a codification of Iowa
City, Iowa ordiminces.
8. The administration of the City Council give full consideration to gradual
adoption of performance budgeting far city finances.
9. Increased consciousness should be promoted among city employees for the need
of the development of public relari:.ns techniques.
10. Where possible, the city and university shzuld work jointly on community
structures which could b:)th serve the university and the city.
H. Revision of the plumbing code and ennctvenr. of a standard fire prevention
code for the city of 1:wa City.
12.. the City Council and admin Ls"..raLi+n shojld give fuLl consideration to the
increased use of electronic data processing equipment on a cooperative basis
with other units of government (i.e.) school board, county and perhaps University
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RECOMMENDATIONS FOR COMMUNITY ACHIEVEMENT
REGARDING RL•CREATION, HEALTH AND CULTURE
L. The City should embark immediately on a planned and systematic program
to acquire suitable land for parks and recreational facilities. A minimum
of 250 acres is urgently needed in well placed locations at the edge of the
city limits, along the river, Melrose Lake, and other locations as necessary.
'_hese parks should include areas suitable for public canoeing.
2. The City Council should endorse and pursue vigorously the concept of fully
coordinated public health activities within Johnson County, including Iowa
City, the University of Iowa, and should arrange for meetings with the Board of
County Supervisors and University officials.
3. xne City Council
should seek the assistance
of the State Health Depart-
ment and the U. S. Public
Health Service/ in evaluating
the status of health condi-
t; :,nd problems in all
Jonnson County.
4. There should be created
within Johnson Count a
metropolitan committee to
advise Local governmental
bodies or. parks, playground
activities and to advance
the cause and concept of
area wide recreat'_onal
facilities. Such a
committee should ir:cicde a
nember of each of the fallowing:
County Poard of Supervisors,
Iowa C'.ty Council, re�resent-
ative of the Uni.versf.'.v,
Iowa C0:y Schooi Board,
Coralviile and Uni';ersiLy
5. Tne Council should undertake a review of the existing health ordinances
of the City of Iowa City toward the end that they might be coordinated and
strengthened and additional ordinances written as needed to provide an
adequate basis to carry out the necessary health department functions of
a municipality.
6. In any central business district improvement program adopted or
sponsored by the city of Iowa City, the city planner should insure
that architectural style is complementary to the existing structures,
and that esthetic aspects such as fountains, malls with sculpture, etc.,
be an integral part of the center.
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% F aue:- �ul•di,%it'i.an hJ•m ung developments within the limits of the city
pj TJ•ja t,:,v Oo-u:d be required by rhe st,bdivlsion nrdinance to provide
land s.u.ei':le foe- park ind ; 1ay✓.rou•:d use.
8. Thr Cr.? 4ourrl1 shuuid create a permanent com:rAttee on juvenile
to
delinquenc;: .o •cork with the .3ocial agencies of the City and County.
9. 'Ihe City Council should cite the need for vocational training in the
_owa City area with an emphasis on post high school technical training
in areas needed by industries locating in the Iowa City area. Such a
project should be 'recommended to the school board for their consideration.
1.0. The r'acemecn of a centrally located bulletin board to facilitate
you eagle with information available to both employers
s%xmier lobs forng
and youth seeking employment in the City of Iowa City.
11. 1fie ricy of Iowa Cicy son+old undertake leasi.:g of an area of the
Coralville Reservoir fcr Ewa Oity use. This land could be obtained on
the same basis as the Uz..versity of lows used in recencly acquiring a
Large traL: if land. i'irt financing could be undertaken by the county
aid the civ.
12. The ::ext sw'i.aaain3 pool should be located -in the southeastern part of
c^e City o° ?owa City and when construcced, should be available for use
the yeas aro :;ad.
13. A bardshell sho,:ld be established near the central business district
uf. the'Ci.tp of Zowa City.
14. 'aha C,:aci1 should ur_iertake careful corslderation of the preservation.
of „owa Ci-. '3 rich historical heritage.
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1.5. That _ase oublLci'.y gh:;;Id be given to ;,resert ;city functions and that
possibly s•.ch an agency as the Chamber of Commerce ar. Community Cheat
office c)-_-!:' aniertake t`e ::b:i:ation of a pamphlet along the lines of
":'h1.s Monti. 'ir. Iowa (,itv."
15. 'The :risen` lavdE:Al area of the city should be developed and land-
scaped lo :se a3 a r;.a^gr r.nd and park area for the city.
17. =ne .'.•.v shoa;:d apaolrt ;in arts and m:gi.c coordiWror to work in and
o a ;.f the c�nreatjcri canter and with the adutt education program of the
S..hools wi-.`1 ae d.t:y of sch-d:a.ing act.i,riti.es and to promote a full range
E euU%ra! activities for the city.
I.S. 'Lhe creation of a teen council to be formed to assist the recreation
cr rr.iestoa in and development of policies and regulations cor-
retning .ts use of and programs for the recreation center.
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1.9. Establishment of a volunteer adult chaperon program to he made available
for activi-Je s at the=e:r.eation center.
20. The City of. Iowa C"y should officially support and give full endorse-
,%ent to the community theater movement in the city.
21. The creation of a permap.ect coacnittee for cultural affairs to consult
with and advise the city planner and work with a like university committee
to promote closer cultural coordination.
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r:!a.•,{,•.p:.:.:1A'! 1YS FOR C:)NNUN_:Y ACE.-ME?)EN-
bE:"A!LL''IRG iRANS�JR_A:�L)N
`:e City s::-:_•1-;ontialie to work for and pursue with full. vigor the
of . so•_;hwest expressway as a :[a^ter of prime importance to
'.i.e [❑'cure of Ctt.y, Johnson Clunty and the entire state of Iowa.
!^:c Citi: s`:d.:a ado;c the Harla^d Bartholomew and AssorilLes rrcommen-
d1-rens with rer.t;sary changes to update the earl.i.er. report. As a part of
tY.is, !.v city s'.r.ld develop a 5 year program of capital exoendi.ttures for
ch::eLormenf
t o:he arterial streets system.
3. <1••.ad'visory c ='lictee cr a permanent nature on public "ansportat(on
shi•1:,d he estebliahed for the city of Iowa City.
A'+. east••west. alley r_nning from Dubuque to Clinton between Iowa Avenue
a•.I c.ashineton. S'==et should be established.
:t. -n setting tetn nical standards for street and sidewalk construction
w'-"`rin Lhe city :_ ::oma City, the Council is urged to foll.w a poiicv
oC vc•o,idinz and new standards .in the form of depar--rental
"Utes .and regul.a-_or_s rather than specifically in ordinances.
6. t is.recoratecded chat the Council give full consideration to work-i.ng
with the L'niversi:•: to establish standards for off-street parking for
7aiversl.ty buildings sim'_lar to standards established in Article XX.T.p
;,f `t.e ]i wa Cit:.':: ,nizi; ordina"ice.
!city Co
'mr_1 is urged to develop and adopt a uniform and modern
s•s:x•� of intersl�:.-ioz designs, patterns and ma-rki.ngs, along with the
.system of .raffic 0:'n".ro1 de-ricas, Ligh-'ing and Landscaping,
..rd -'v _. with eoecialiaed signs s -:.;h as various colored
s'.ree: nstr si3ns : ider.iEY local s:resta r•.,�111ertorscreets, thorough -
i
f^s; steeial sl::•s t•1 _dentify loop streets and all other types of
encs i:o be J.or:a:..'_ to the City of ;.•1wa city.
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Cit:*.* C.:_rshould bagin or renew r..r_.{atia_i.1ns w Lh the Cedar
1•'.a_ id5 and :.owa t::::y Fail=oad on grade se"27.Qtions that need to be
=.n.'! CitJ s!'.•7:.:- __ier.ake 3 poli-, :1t' s`l'id: �7,�C r
:'s with fizz e:,' - F _y - F'- r-3 of alleys a.d
.. .u-cevent.
!i. :.. Ci%V of - '.L City i.r. ror;jt:nc::ion watt the Ch_cagw, Rock Isla^.d
^.i E'ac;.fic Rsi1c :: st•.oul.d begin a grade separation study .ind take
st 5t, all.ev..att• :he situation at the rirst Avenje crossing because
[1'. ..ne c:•er i!t::rea;(•:y+ fl••1w of traffic in that area.
ei;ea in rhe future to Layou•: of streets so
-': rl•o•e and ease: at�:ess is nrovided from one street t•
argth_.or
for
rience :f xople deci.dine to use a publictranspor.ta^.ler. facility.
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12. The new sjbdivision ordinance should be amended to provide that
the city bear the part of the cost of arterial streets which run through
subdivisions, represented by the additional street width beyond that
required for the particular subdivision.
13. It was recommended that the City Council give consideration to the
opening and improvement of platted public alleys, streets, and other
Parts of the residential district with the objective of providing access
to the rear properties and to this extent of eliminating off street
parkings.
14. The city should seek and promote improved enabling legislation pro-
viding for a mapped streets act to facilitate reservation of rights-of-way
for extension and developnent of arterial streets.
15. The city should seek a closer liaison azd more cooperation between
the .Alrport Commission and city'administration authorities.
15. The Police Department should be instructed to charge meter hoods to
responsible businesses who have a legitimate use in a metered area and
bill the company for the space ac the end of each month. If requested,
meter maids should be made responsible for placing the hoods at the
I; reserved space.
17. Existing and proposed ordinances should be reviewed for their affect
or. off street parking. (See residential streets report for further comments
regarding the sub -division ordinance.)
MENDATIONS FOR COMMUNITY ACHIEVEMENT
REGARDING METROPOLITAN PLANNING
1. The city should endorse the concept of metropolitan planning
and take the lead in the creation and support of a metropolitan planning
commission.
2.' Comprehensive plans for the future development of Iowa City should
be pursued with full speed, and the city should adopt proceedures necessary
,to insure continuity of planning and use of the plan as a basis for city
development. i
3. The immediate annexation of all unincorporated territory surrounding
Iowa City sufficient to meet the needs of industrial and residential growth
in the next twenty years.
4: -.The city should protect areas suitable for industrial development.
5.:. The City Council should enact and inforce a housing code to encourage
and.maintain high standards of housing.
6., The city entered into the federally subsidized low rent housing project
for the elderly, and for those persons under sixty-five with sub -standard
incomes.
?.1 Elimination of sub -standard housing by use of a federal urban renewal
clearance program and rehabilitation for the area set forth in the
Bartholomew Report on Housing.
8. Encouragement of multiple dwelling units near the Central Business
District.
kity of Iowa CHO
MEMORANDUM
DATEi September 20, 1977
City Council;
TO: Neal Berlin, City Manager; Mike Kucharzak, Director of
Housing & Inspection Services; Housing Comiission
FROM: Lyle G. Seydel, Housing Coordinator
RE: Open House and Dedication Cererrony - Autumn Park
a. Inspection by HUD of the second building at Autumn Park Apartrnents
was perfonned on September 15 and permission to occupy was granted.
All units will be occupied on/before October 1, 1977.
b. A brief ceremony will be held on October 13, 1977 at 3:00 p.m.
dedicating the building to service for Senior Citizens. This will
be followed by an Open House during which the complex will be open
for viewing by the public. Refreshments will be served by the
residents.
c. Mr. Willian Anderson, Kansas City Regional Administrator; Nate Ruben,
Des Moines HUD Area Office; Senator Clark and Culver and Congressmen
Leach and representatives from Midstates Development will be invited.
d. Request the Mayor be prepared to welcome the guests and act as official
host for the ceremony.
e. Coordination and arrangements for the event will be performed by the
Housing Division.
377e
' 9.30.10 Multiple Dwellings
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9.30:11' Alterations 0 C T 51977
9.30,.12 Remedies A R R 1 G c T n l C 1 1 C
1R 4 '` 9 30J13 Retaliatory Conduct Prohibited CITY CLERK
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DRAFr:
August
25, 1977
9.30 HOUSING OCCUPANCY AND MAINTENANCE CODE
9.30.1
General Provisions
9.30.2
Definitions
9.30.3
Inspection 6 Enforcement
9.30.4
Minimum Standards for Basic Equipment 6 Facilities
'
9.30.5
Minin= Standards for Light, Ventilation $ Heating
9.30.6
Minimum Space, Use $ Location Requirements
9:30.7
Responsibilities of Owners
9.30.9
Responsibilities of Occupants
'
.9.30.9
Rooming Houses
' 9.30.10 Multiple Dwellings
��' D
9.30:11' Alterations 0 C T 51977
9.30,.12 Remedies A R R 1 G c T n l C 1 1 C
1R 4 '` 9 30J13 Retaliatory Conduct Prohibited CITY CLERK
3,
:377 /
DRAFr
August 25, 1977
9.30 HOUSING OCCUPANCY AND MAIM'ENANCE CODE
9.30.1 General Provisions
9.30.2 Definitions
9.30.3 Inspection $ Enforcement
9.30.4 Minimum Standards for Basic Equipment $ Facilities
9.30.5 Minimum Standards for Light, Ventilation 6 Heating
9.30.6 Minimum Space, Use 6 Location Requirements
9,30,7 Responsibilities of Owners
i
9.30:8.
Responsibilities of Occupants
9:30.9
Rooming Houses
9.30 .10
Multiple Dwellings
9.30 .11
Alterations
9.30.12
Remedies
Conduct prohibited
,^
9:30.13.:
Retaliatory
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CHAPTER 9.30.1
GENERAL PROVISIONS
9.30.1 General Provisions. The following general provisions shall apply in the
interpretation and enforcement of this ordinance.
A. Legislative Finding. It is hereby found that there exist and may in the
future exist, within the City of Iowa City, premises, dwellings, dwelling
units, rooming units, or parts thereof, which by reason of their structure,
equipment, sanitation, maintenance, use, or occupancy affect or are likely
to affect adversely the public health (including the physical, mental, and
social well-being of persons and families), safety, and general welfare.
To correct and prevent the existence of such adverse conditions, and to
achieve and maintain such levels of residential environmental quality as
will protect and promote public health, safety, and general welfare, it is
further found that the establishment and enforcement of minimum housing
standards are required.
[P,D, B. Purposes. It is hereby declared that the purpose of this ordinance is to
-,' protect, preserve, and promote the physical and mental health and social
- well-being of the people, to prevent and control the incidence of communicable
diseases, to reduce environmental hazards to health, to regulate privately
and publicly owned dwellings for the purpose of maintaining adequate sanitation
and public health, and to protect the safety of the people and to promote
the general welfare by legislation which shall be applicable to all dwellings
now in existence or hereafter constructed. It is hereby further declared
that the purpose of this ordinance is to insure that.the quality of housing
is adequate for protection of public health, safety and general welfare,
including: establishment of minimum standards for basic equipment and
facilities for light, ventilation, and thermal conditions, for safety from
fire and accidents, for the use and location and amount of space for human
occupancy, and for an adequate level of maintenance; determination of the
responsibilities of owners, operators and occupants of dwellings; and
provision for the administration and enforcement thereof.
P.D. C. Scope. The provisions of this ordinance shall apply uniformly to the
construction, maintenance, use and occupancy of all residential buildings
and structures, where applicable, and shall apply uniformly to the alteration,
repair, equipment, use, occupancy and maintenance of all existing residential
buildings and structures within the jurisdiction of the City of Iowa City
irrespective of when or under what code or codes such buildings or structures
r' were originally constructed or rehabilitated.
Title. This ordinance shall be known and may be cited as the Housing
Fia tnienance and Occupancy Code of the City of Iowa City, hereinafter
referred to as "this ordinance".
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CHAPTER 9.30.2
DEFINITIONS
The following definitions shall only apply in the interpretation and enforcement
of this chapter:
`.P.D, Accessor Structure shall mean a detached structure which is not used, or not
inten a to be used, for living or sleeping by human occupants.
$,R, Adjoinin Grade shall mean the average elevation of the ground which extends
t ree 3 feet from the perimeter of the dwelling.
i-. $,R,- Approved shall mean'approved by or in accordance with regulations established by
the Housing Inspector.
P D Attic shall mean any story situated wholly or partly within the roof and so
designed, arranged, or built to be used for business, storage, or habitation.
$,R,,. Basement shall mean a portion of a building located partly underground, but
avfi ing three and one-half (3�) feet or more of its floor -to -ceiling height above
the average grade of the adjoining ground.
;$,R,_ Bath shall mean a bathtub or shower stall properly connected with both hot and
cod water lines.
Bedroom shall mean a habitable room within a dwelling unit which is used or
int'ned to be used primarily for the purpose of sleeping, with a door to
-insure privacy, but shall not include any kitchen or dining room.
$,R, Cellar shall mean a portion of a building located partly or wholly underground
and having less than three and one-half (32) feet of its floor -to -ceiling height
above the average grade of the adjoining ground.
t P,D, Central'Heatin System shall mean a single system supplying heat to one (1) or more
dwelling units or more than one (1) rooming unit.
R ,-Communal shall mean used or shared by, or intended to be used or shared by, the
occupants of two (2) or more rooming units, or two (2) or more dwelling units.
$,R,,. Di�ning�Ro�om.shall mean a habitable room used or intended to be used for the
purpose of eating, but not for cooking or the preparation of meals.
DuOlez shallmean any habitable structure containing two (2) single dwelling
units.
$,R, Dwel�lin- shall mean any building or structure, except temporary housing, which
s� wholly or partly used or intended to be used for living or sleeping by human
occupants and includes any appurtenances attached thereto.
H c'.
Dwelling Un�it'shall mean any habitable room or group of adjoining habitable
roomed within a dwelling and forming a single unit with facilities which
are used or intended to be used for living, sleeping, cooking, and eating of
r meals.
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P.D.
MAS,
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Egress shall mean an arrangement of exit facilities to assure a safe means of
exit from buildings.
Extermination shall mean the control and elimination of insects, rodents, or
other pests by eliminating their harborage places; by removing or making inaccessible
materials that may serve as their food; by poisoning, spraying, fumigating,
'trapping; or by any other recognized and legal pest elimination methods approved
by the Housing Inspector.
Famil shall mean one (1) person, two (2) or more persons related by blood,
marriage, or adoption, including legally assigned foster children, occupying a
laving unfit as an individual housekeeping organization.
Garbage shall mean•animal and vegetable waste resulting from the handling, .
preparation, cooking, or consumption of food; and shall also mean combustible
waste material. The -term shall also include paper, rags, cartons, boxes, wood,
excelsior, rubber, leather, tree branches, yard trimmings, and other combustible
materials.
$,R, Habitable Room shall mean a room or encloEed floor space used, or intended to be
used for living, sleeping, cooking, or eating purposes; excluding bathrooms,
toilet rooms, laundries, pantries, foyers, or communicating corridors, closets,
storage spaces, and stairways.
P.D. Housing Inspector shall mean the official or officials of the City of Iowa City
appointeto
minister the provisions of this Chapter.
M, S, Infestation shall mean the presence, within or around a dwelling, of any insects,
ro ent
s, or other pests.
s$,R;" ; Kitchen shall mean a habitable room used or intended to be used for cooking or
the preparation of meals.
r ,SA, Kitchenette shall mean a food preparation area not less than forty (40) square
,T_
a :,feet in.area.
'Kitchen Sink shall mean a sink of a size and design adequate for the purpose of
was ingeating and drinking utensils, located in a kitchen, properly connected
with a cold water line and a hot water line.
$,R, Lavatory Basin shall mean a handwashing basin which is properly connected with
both hot and cold water lines and which is separate and distinct from a kitchen
sink:
$;R, Living Room shall mean a habitable room within a dwelling unit which is used, or
intended to be used, primarily for general living purposes.
Multiple Dwelling shall mean any dwelling containing three (3) or more dwelling
units:. .
Occupant`shall mean any person, including owner or operator, living, sleeping,
cooking in, or having actual possession of a dwelling, dwelling unit, ora rooming
r•
unit.
$'R'0 erator shall mean any person who rents to another or who has custody or
contra of a building, or part thereof, in which dwelling units or rooming units
are let, or who has custody or control of the premises.
$,R, Owner shall mean any person who has legal title or equitable title, or has
custody or control of any dwelling, dwelling unit, or rooming unit as executor/executrix,
administrator/administratrix, trustee, or guardian of the estate of the owner.
Permit shall mean a certificate certifying that the unit for which it is issued
M'H'$'
was compliance with the applicable provisions of this Chapter when last
inspected. Said Certificate shall expire one (1) year from the date of issuance,
unless sooner suspended or revoked as hereinafter provided, and shall be renewed
annually.
:,' M,H,$I Person shall mean any individual, firm, corporation, association, or partnership.
M.H.S. Plumbinj shall mean and include all of the following supplied facilities and
equipment: gas pipes, gas -burning equipment, water pipes, garbage disposal units,
waste pipes, toilets, sinks, lavatories, bathtubs, shower baths, installed
dishwashers and clothes washing machines, water heating devices, catch basins,
drains, vents, and any other similar supplied fixtures together with all connections
1 to water, public sewer or gas lines.
$,R,, Premises shall mean a platted or unplatted lot or part thereof, either occupied
or unoccupied by any dwelling or accessory structure.
Privacy shall mean the existence of conditions which will permit a person or
::persons to carry out an activity commenced without interruption or interference
by unwanted persons.
Refuse shall mean all putrescrible and non-putrescrible solids (except human
- bo�waste) including garbage, rubbish, ashes and dead animals.
Refuse Container shall mean a watertight container that is constructed of
meta , or of er durable material impervious to rodents, that is capable of being
serviced without creating unsanitary conditions.
"".S,R, Roomer shall mean an occupant of a rooming house who is not a member of the
family of the operator of that rooming house, and shall also mean an occupant of
a dwelling unit who is not a member of the family occupying the dwelling unit.
Rooming House shall mean any dwelling, or that part of any dwelling, containing
one or more rooming units, in which space is let by the owner or operator to
three (3) or more roomers.
1.Rooming House -T e I shall mean a rooming house in which space is let
more t an
two but fewer than nine (9) roomers.
2. Roomin House -Type II shall mean a rooming house in which space is let
<,;; to nine I or more roomers.
M,H,$, Rooming Unit shall mean any room or group of rooms forming a single habitable
unit in a rooming house used or intended to be used for living and sleeping, but
not for cooking or eating of meals.
Rubbish shall mean non-putrescrible waste material consisting of combustible
an or non-combustible materials.
M,H,$, Supplied shall mean paid for, furnished, provided by, or under the control of
5e owner or operator.
Temporary Housing shall mean any tent, trailer, or other structure used for
uman shelter which is designed to be transportable and which is not attached to
the ground, to another structure, or to any utilities system on the same premises
for more than thirty (30) consecutive days.
Tiolet shall mean a water closet, with a bowl and trap made in one (1) piece,
' which is of such shape and form and which holds a sufficient quantity of water
so that no fecal matter will collect on the surface of the bowl and which is
equipped with flushing rims which permit the bowl to be properly flushed and
U scoured.when water is discharged throught the flushing rim.
t'M,H,$, Meaning of Certain Words. Whenever the words "dwelling", "dwelling unit",
"rooming house", "rooming unit", or "premises" are used in this Chapter, they
shall be construed as though they were followed by the words "or any part
thereof%
CHAPTER 9.30.3
INSPECTION AND ENFORCEMENT
Enforcement Notice:
M,H,S, A. Authority. The Housing Inspector is hereby authorized to administer and
enforce the provisions of this Code, and to make inspections to determine
the condition of dwellings, dwelling units, rooming units, trailers,
structures, and premises located within the City of Iowa City, in order
that he/site may perfo•m his/her duty of safeguarding the safety and welfare
of the occupants of dweliings and of the general public.
S,R, B. Access by Owner or Operator. Every occupant of a dwelling, dwelling unit,
rooming unit�um t shall give the owner or operator thereof, or
his agent or employee, access to any part of such dwelling, dwelling unit,
rooming unit, or its premises at all reasonable times for the purpose of
effecting such maintenance, making such repairs or making such alterations
as are necessary to effect compliance with the provisions of this Chapter
or with any lawful rule or regulation adopted or any lawful notice or order
issued pursuant to the provisions of this Chapter.
P,D, C. Right of Entry. Wherever necessary to make an inspection to enforce any of
the provisions of this Code, or whenever the Housing Inspector or his/her
authorized representative has reasonable cause to believe that there exists
in any dwelling, dwelling units, rooming units, structures, or premises any
condition which makes such unit or premises in violation of any provision
of this Code, or in response to a complaint that an alleged violation of
the provision of this Code or of applicable rules or regulations pursuant
thereto may exist, the Housing Inspector or his/her authorized representative
may enter such unit or premises at all reasonable times to inspect the same
or to perform any duty imposed upon the Housing Inspector by this Code;
provided that if such unit or premises be occupied, he/she shall first make
a reasonable effort to locate the owner or other person having charge or
control of the building or premises and request entry. The Housing Inspector
or authorized representative shall at such time:
1. Identify himself/herself and his/her position.
2. Explain why entry is sought.
3. Explain that the owner or, other person having charge or control
of the premises may refuse, without penalty, entry without an
Order to Allow Inspection.
4. Explain that if entry is refused, the Housing Inspector may apply
to a Magistrate for an Order to Allow Inspection.
Order to Allow Inspection. The Housing Inspector is hereby authorized to
duct consentual inspections of any dwelling within Iowa City, Iowa, on
a reasonable and regular inspectional basis or upon request or complaint,
in order to perform the duty of safeguarding the health and safety of the
occupants 'or the public. If consent to inspect the building is withheld by
any person or person having the lawful right to exclude, the Housing Inspector
shall apply to a Magistrate of the Iowa District Court in and for Johnson
County for an order to allow inspection of the building.
0
0
E. Penal t . No owner or occupant or any other person having charge, care, or
control of any dwelling, dwelling unit, rooming unit, structure, or premises
shall fail or neglect, after presentation of an Order to Allow Inspection
or a Search Warrant, to properly permit entry therein by the Housing Inspector.
his/her authorized representative for the purpose of inspection and examination
pursuant to this Code. Any person violating this subdivision shall be
guilty of a misdemeanor.
P.D. F
S,R, G
Evidence. Evidence obtained by use of an Order to Allow Inspection may be
used to effectuate the purposes and provisions of this Chapter in any
ensuing action brought by the City for a violation of this Chapter.
Service of Notice. Whenever the Inspector of BuiM1195 U2tC1'llllilc5 that
there has been a violation, or that there are reasonable grounds to believe
that there has been a violation of any provision of this Chapter or of any
rule or regulation adopted pursuant thereto, he shall give notice of such
violation or alleged violation to the person or persons responsible therefor.
Such notice shall:
1. Be put in writing;
2. Include a description of the real estate sufficient for identification;
3. Include a statement of the reason or reasons why it is being
issued;
4. Allow a reasonable time for the performance of any act it requires;
5. Be served upon the owner, or the operator, or the occupant, as
the case may require; provided that such notice shall be deemed
to be properly served upon such owner, or upon such operator, or
upon such occupant, if a copy thereof is delivered to him personally
or, if not found, by leaving a copy thereof at his usual place of
abode, in the presence of someone of the family of suitable age
and discretion who shall be informed of the contents thereof, by
registered mail or by certified mail, with return receipt requested,
to his last known address, or if the registered or certified
letter with the copy is returned with a receipt showing it has
not been delivered to him by posting a copy thereof in a con-
spicuous place in or about the dwelling affected by the notice.
Such notice may contain an outline of remedial action which, if
taken, will effect compliance with the provisions of this Chapter
and with rules and regulations adopted pursuant thereto.
I$,
Rv H. AAp�g�e�aal�ss. Any person affected by any action, notice, interpretation or
` order by the Housing Inspector with respect to this ordinance may appeal to
the Housing Appeals Board in accordance with the procedures of the Iowa
City Administrative Procedures Act.
P,Dr I. Other'Remedies. No provision or section of this ordinance shall in any way
unit•eny of er remedies available under the provisions of the Housing Code
or any other applicable law.
I
r�
u
0
P.D. J. Emergency Orders. Whenever the Housing Inspector, in the enforcement of
this Chapter, finds that an emergency exists which requires immediate
action to protect the public health or safety, he may, without notice or
hearing, issue an order reciting the existence of such an emergency and
requiring that such action be taken as he deems necessary to meet such
emergency. If necessary, the Housing Inspector may order that the premises
be vacated forthwith and that they shall not be reoccupied until the order
to make repairs has been complied with. Notwithstanding other provisions
of this Chapter, such order shall be effective immediately, or in the time
and manner prescribed by the order itself.
1. Hearing. Any person to whom such order is directed shall comply
therewith, but upon petition to the Board shall be afforded a
hearing as prescribed in this Chapter. After such hearing,
depending upon the findings of the Board as to whether the provisions
of this Chapter and the rules and regulations adopted pursuant
thereto have been complied with, such Board shall continue such
order or modify it or revoke it. Nothwithstanding other provisions
of this Chapter, every notice served by the Housing Inspector
shall be regarding as an order.
a�a
,
MAS,
S. R.
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CHAPTER 9.30.4
MINIMUM STANDARDS FOR BASIC EQUIPMENT AND FACILITIES
No person shall occupy or let to another for occupancy any dwelling or dwelling
unit for the purpose of living, sleeping, cooking or eating therein which does
not comply with the following requirements:
A. Su lired Facilit . Every supplied facility, piece of equipment or utility
requied sha be constructed or installed so that it will function safely
and shall be maintained in satisfactory working condition.
B. Kitchens.• Every dwelling unit shall have a kitchen room or kitchenette
equips with the following:
H. ?Connection of Sam
sink, toilet, lava
and .properly tonne
Facilities to Water and Sewer System_. Every kitchen
basin and bath shall be in good working condition
to an approved water and sewer system.
1. It shall include an approved kitchen sink.
2. It shall contain a refrigerator (in proper working order) with an
adequate food storage capacity.
3. It shall contain a stove or range in proper working order.
M,H,S,
C.
Toilet Required. Every dwelling unit shall contain a toilet.
M,H,S,
.D.
Bath Required. Every dwelling unit shall contain a bath.
M.H,S,
E.
Lavatory Basin Required. Every dwelling unit shall contain a lavatory
basin within the room containing the toilet.
$,R,c
F.
`: Privacy In a P.00m'Containing Toilet and Bath. Every toilet and every bath
-shall be contained within a room or within separate rooms which afford
privacy for a person within said rooms.
M,H.$,
G.
Water Heatin Facilities Re wired. Every kitchen sink, bath, and lavatory
basin require in actor ante with the provision of this Chapter, shall be
properly connected with supplied water heating facilities. Every supplied
water heating facility shall be properly connected and shall be capable of
heating water to such a temperature as to permit an adequate amount of
water to be drawn at every kitchen sink and lavatory basin required under
the provisions of this Chapter at a temperature of not less than one hundred
twenty.(120) degrees Fahrenheit. Such supplied water heating facilities
shall be capable of.meeting the requirements of this subsection where the
required dwelling or dwelling unit heating facilities are not in operation.
L
�y
H. ?Connection of Sam
sink, toilet, lava
and .properly tonne
Facilities to Water and Sewer System_. Every kitchen
basin and bath shall be in good working condition
to an approved water and sewer system.
M.H.S. I.
0
Exits.
1. Two means of egress required:
I: 2
0
(a) Every dwelling unit and rooming unit shall have access to two (2)
independent, unobstructed means of egress remote from each other.
At least one (1) shall be a doorway which discharges directly or
via corridors or stairways or both to the exterior of the building
at ground level.
Every exit from every dwelling shall comply with the following requirements:
(b)
(c)
(d)
3.
It shall be kept in a reasonably ood state of repair.
All -existing stairways of four (4� or more risers shall have at
least one (1) handrail and those stairways which are five (5)
feet or more in width, or which are open on both sides, shall
have a handrail on each side. Stairways which are less than five
(5) feet in width shall have a handrail on the left hand side as
one mounts the stairs and on the open side, if any.
All handrails shall be substantial and shall be located between
thirty (30) and thirty-four (34) inches above the nose of the
stairtreads.
All platforms accessible to occupants and situated more than two
(2) feet above adjacent areas shall be protected by substantial
guardrails at least thirty-six (36) inches high.
All exterior doors and windows below the second floor of a
dwelling shall be equipped with a safe functioning locking
device.
During the portion of each year when the Housing Inspector deems
it necessary for protection against the elements and cold, every
door, opening directly from a dwelling unit or rooming unit to
outdoor space, shall have supplied storm doors with a self-
closing device; and every window or other device with openings to
the outdoor space shall likewise be supplied with storm windows,
except where such other device for protection against the elements
and cold is provided such as insulating glass, and insulated
metal exterior doors.
In basement units where one means of egress shall be a window, such
window shall open directly to the street or yard, shall be at least
twelve (12) square feet in area clear of sash frame, and shall open
readily.
413 J. Basement or Cellar Under Entrance Floor - Every dwelling hereafter erected shall
ave a basement, cellar or excavated f oor space under the entire entrance
floor,::at least three (3) feet in depth or shall be elevated above the ground
so that there will be a clear air space of at least eighteen (18) inches
between the top of the ground and the floor joist so as to ensure ventilation
and protection from dampness; provided, however, that cement floor may be laid
on the ground level if desired.
413
CHAPTER 9.30.5
MINIMUM STANDARDS FOR LIGHTING, VENTILATION, AND HEATING
A. Minimum Rear Yard Re uirements. Every single and two (2) family dwelling
s a have a rear yar which is a minimum of ten (10) feet deep for structures
one (1) story in height, plus two (2) feet for each additional story. An
irregularly shaped lot may be occupied by a dwelling without complying with
the provisions of this section if the total yard space equals that required
by this section.
B. Minimum Side Yard Requirements. If a dwelling is erected up to the side
lot line, light and ventilation as required by this Chapter shall be provided
by means other than windows opening to the side yard. In case of all
dwellings having side yards, the width shall be not less than four (4) feet
for the first story plus one (1) foot for each additional story.
C. More Than One Structure on a Lot. Where more than one (1) structure is
erected upon the same lot, the distance between them shall not be less than
eight (8) feet. This distance shall be increased two'(2) feet for each
additional story above the second.
LU D.
Courts.
have at least one (1)
•
win o' d w facing directly to
1. The minimum width of an outer court of a one (1) story dwelling shall
window area,
be five
(5) feet, for a two (2) story dwelling six (6) feet, for a
three (3)
story dwelling seven (7) feet, and shall increase one (1)
`
_.foot for each additional story.
r
2. An inner court shall be twice the minimum width required for an outer
window area of
court.
3. The width of all courts adjoining the lot line shall be measured to
the total floor area
the lot line.
`
4. In mixed-use dwellings where there are no dwelling units on the lower
story, courts may start on the top of such lower story.
5.1:. Every inner court extending through more than one (1) story shall be
provided with a horizontal air intake at the bottom.
6. Irregularly shaped court yards must meet the minimum area requirements.
Any structure hereafter placed on the same lot with the dwelling shall '
be so placed as to maintain the minimum yard requirements.
'
7. In every dwelling where there is a court or shaft of any kind, there shall
be at the bottom of every such shart and court a door giving sufficient
access to such shaft or court to enable it to be properly cleaned out;
provided that where there is already a window giving proper access it
shall be deemed sufficient.
M,H,S, E.*
Natural L�igh�t.• Every habitable room except kitchens shall
have at least one (1)
•
win o' d w facing directly to
the outdoors. The minimum total
window area,
measured -between stops, for every habitable room shall be at least ten (10)
percent of the floor area
of such room. Whenever the only,window
in a room
is a skylight type window
such skylight shall equal
in the top of such room the total
at least
window area of
fifteen (15) percent of
the total floor area
of such room.
413
413
0
F. Lighting of Public Halls Stairways Basements, and Cellars.
1. Public passageways and stairways in buildings accommodating two (2) to
four (4) families shall be provided with convenient wall -mounted light
switches controlling an adequate lighting system which may be turned
on when needed. An emergency circuit is not required for this lighting.
2. Public passageways and stairways in buildings accommodating more than
four (4) units shall be lighted at all times with an adequate artificial
lighting system; except, that such artificial lighting may be omitted
from sunrise to sunset where an adequate natural lighting system is
• provided. Whenever the occupancy of the building exceeds one hundred
(100) persons, the artificial lighting system as regulated herein
shall be on an emergency circuit.
3. 'All basements and cellars shall be provided with an adequate lighting
system which may be turned on when needed.
4. Intensity of Light. An adequate lighting system, as required herein,
shall mean an intensity of two (2) foot candles at a plane thirty (30)
inches above the floor line.
5. The required intensity shall apply to both natural and artificial
lighting.
G. Ventilation.
Natural Ventilation.
(a)
(b)
(c)
a 'MI HIS, (d)
The total of openable window area in every habitable room shall
be equal to at least forty-five (45) percent of the minimum
window area size as required above.
During that portion of the year when the Housing Inspector deems
it necessary for protection against mosquitoes, flies, and other
insects, every door used for ventilation, opening directly from a
dwelling unit or rooming unit to outdoor space, shall have
supplied screens of not less than sixteen (16) mesh per inch and
a self-closing device; and every window or other device with
openings to the outdoor space, used for ventilation, shall likewise
be supplied with such screens.
In a bathroom or toilet room, the minimum window size shall be
not less than four (4) square feet between stop beads.
Whenever a window faces an exterior wall or structure which
extends higher than the ceiling of the room and is located less
than three (3) feet from the window, such window shall not be
included as contributing to the required minimum window area for
the purpose of ventilation.
2. • Mechanical Ventilation.
In lieu of openable windows, adequate ventilation may be
a system of mechanical ventilation which provides not less
P.D. - 1. Every dwelling shall have heating facilities which are properly
installed, are maintained in safet and good working condition, and are
capable of safely and adequately heating all habitable rooms, bathrooms,
and toilet rooms located therein to a temperature of at least seventy
(70) degrees Fahrenheit and shall maintain in all said locations a
minimum temperature of sixty-five (65) degrees Fahrenheit, at a distance
of three (3) feet above the floor level at all times. Such heating
facilities shall be so operated and equipped that heat as herein
specified is available to all dwelling units and rooming units.
M,HS, 2. Every central heating unit, space heater, water heater, and cooking
appliance shall be located and installed in such a manner, so as to
afford reasonable protection against involvement of egree facilities
or egress routes in the event of uncontrolled fire in the structure.
,S,. 3.
Every fuel burning heating unit or water heater shall be effectively
vented in a safe manner to a chimney or duct leading to the exterior
of the building. The chimney, duct, and vents shall be of such design
as to assure proper draft, shall be adequately supported, and shall be
kept reasonably clean and in good condition.
4. No fuel burning heater shall be located within any sleeping room or
bathroom unless provided with adequate ducting for air supply from the
exterior, and the combustion chamber for such heating unit shall be
sealed from the room in an airtight manner.
5. Every steam or hot water boiler and every water heater shall. be
protected against overheating by appropriate temperature and pressure
limit controls.
than fifteen (15) air changes per hour in all habitable rooms
and/or bathrooms or toilet compartments.
413
(b)
No mechanical exhaust system, exhausting vapors, gases or odors
shall be discharged into an attic, crawl space or cellar but
shall be directed to the outside air; except that this shall not
prevent the mechanical exhausting of normal room air to attics
when used solely for cooling purposes.
3. Basements and Cellars.
413(a)
Cellars and nonhabitable areas of basements shall be provided
window area of not less than one (1) percent of the floor area.
M.H.S.
(b)
Every cellar window used or intended to be used for ventilation,
and'every other opening to be a cellar or crawl space which might
provide an entry for rodents, shall be supplied with a heavy wire
screen of not larger than one-fourth (,) inch mesh or such device
as will effectively prevent their entrance.
413
4. Crawl Spaces and Attic Spaces shall be provided with ventilating area
not
less than 1/300ths of the floor area.
_ H.
Heating.
P.D. - 1. Every dwelling shall have heating facilities which are properly
installed, are maintained in safet and good working condition, and are
capable of safely and adequately heating all habitable rooms, bathrooms,
and toilet rooms located therein to a temperature of at least seventy
(70) degrees Fahrenheit and shall maintain in all said locations a
minimum temperature of sixty-five (65) degrees Fahrenheit, at a distance
of three (3) feet above the floor level at all times. Such heating
facilities shall be so operated and equipped that heat as herein
specified is available to all dwelling units and rooming units.
M,HS, 2. Every central heating unit, space heater, water heater, and cooking
appliance shall be located and installed in such a manner, so as to
afford reasonable protection against involvement of egree facilities
or egress routes in the event of uncontrolled fire in the structure.
,S,. 3.
Every fuel burning heating unit or water heater shall be effectively
vented in a safe manner to a chimney or duct leading to the exterior
of the building. The chimney, duct, and vents shall be of such design
as to assure proper draft, shall be adequately supported, and shall be
kept reasonably clean and in good condition.
4. No fuel burning heater shall be located within any sleeping room or
bathroom unless provided with adequate ducting for air supply from the
exterior, and the combustion chamber for such heating unit shall be
sealed from the room in an airtight manner.
5. Every steam or hot water boiler and every water heater shall. be
protected against overheating by appropriate temperature and pressure
limit controls.
S.R. 6. Every gaseous or liquid fuel burning heating unit and water heater
shall be equipped with electronic ignition or with a pilot light and
an automatic control to interrupt the flow of fuel to the unit in the
event of failure of the ignition device. All such heating units with
plenum shall have a limit control to prevent overheating.
0
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CHAPTER 9.30.6
MINIMUM SPACE, USE, AND LOCATION REQUIREMENTS
No person shall occupy as owner -occupant, or let to another for occupancy any
dwelling or dwelling unit, for the purpose of living, sleeping, cooking, or
eating therein, which does not comply with the following requirements:
M,H,S. A.
Habitable Room Size. All habitable rooms used for living; sleeping, and
$
eating shall contain at least eighty (80) square feet of floor area and no
such room shall be less than seven (7) feet wide. The minimum size for
LL13
habitable rooms used for food preparation shall be forty (40) square feet
in area and a.kitchenette may be less than seven (7) feet wide. In all dwellings
and in each apartment or group or suite of rooms, there shall be at least
one (1) room containing not less than one hundred twenty (120) square feet
of floor area.
MAS. B.
Floor Area Per Occupant. Every dwelling unit shall contain at least one
hunJred fifty 0 square feet of floor space for the first occupant
thereof and at Teast one hundred (100) additional square feet of floor
space for every additional occupant thereof.
MAS, C.
Air Space In Sleeping Rooms. In every dwelling unit of two (2) or more
rooms, every room occupied for sleeping purposes shall contain at least
four hundred (400) cubic ceet of air space for each occupant twelve (12)
years of age or older and at least two hundred (200) cubic feet of air
space for each occupant under twelve (12) years of age.
D.
CeilinHei ht. No habitable room in any dwelling shall be in any part less
t an seven feet high from finished floor to finished ceiling; the
average height of any such room shall not be less than seven feet six
inches (7'6"). Any habitable room located directly below a roof in a
private or a two (2) family dwelling requires a seven (7) foot ceiling
height in one-half (k) its area, and areas of less than five (5) feet ceiling
height shall not be considered as a part of the required room area
,.S,R. : E.
J
MAS, F.
Direct Access. Access to each dwelling unit or rooming unit shall not
require first entering any other dwelling unit or rooming unit.
Basement S ace Ma Be Habitable. No basement space shall be used as a
abitab a area un ess:
-1 The floor and walls are of waterproof and damp proof construction.
2. The total window area in each room is equal to at least the minimum
window area sizes are required in Sections 9.30.5.E. and 9.30.5.G.l.a.
3. 'Said rooms shall be at least seven (7) feet high in every part from
:.t!;e_floor to the ceiling.
4. There shall be appurtenant to such room the use of a toilet room.
0 0
CHAPTER 9.30.7
RESPONSIBILITIES OF OWNERS RELATING TO THE
MAINTENANCE OF DWELLINGS AND DWELLING UNITS
No person shall occupy as owner -occupant, or let to another for occupancy, any
dwelling unit, or portion thereof, for the purpose of living therein, which does
not comply with the following requirements:
MAS, A. Maintenance of Structure. Every foundation, roof, floor, wall, ceiling,
stair, step, sidewalk, and every window, door, and other aperature covering
shall be maintained in good condition.
M.H.S. 1. Every door, door hinge, door latch, and door lock shall be in good
condition and every door, when closed, shall fit reasonably well
within its frame. All windows and doors, and their frames, shall be
constructed and maintained in weather-proof condition.
M,H,$, 2. Every doorway providing ingress or egress from any dwelling unit,
bitable room shall be at least six (6) feet four
rooming unit, or ha
(4) inches and twenty-four (24) inches wide. All entrance doorways to
dwelling units and rooming units shall be equipped with doors which
effectively close the doorway.
$,R; 3. Every interior partition, wall, floor, and ceiling shall be capable of
affording privacy and maintained so as to permit them to be kept in a
clean and sanitary condition.
4. . Every foundation, exterior wall, and roof shall be reasonably weather-
tight, water -tight, rodent -proof, and insect -proof.
B. Rainwater Drainage. All eaves, troughs, downspouts, and other roof drainage
equipment of the dwelling and its outbuildings shall be maintained in a
good state of repair and so installed as to direct rainwater away from the
structure.
Cr Chimneys and Smoke i es. Every chimney and every supplied smokepipe shall
e adequately supported, reasonably clean, and maintained in a reasonably
good state of repair.
M.H.S. p. Draine_ d Premises• All premises and grounds of every dwelling shall be
graded, drdrained, and maintained to preclude the attraction, breeding, and
harborage of pests and vermin.
M,H,$, E. Protection of Exterior Wood Surfaces. All exterior wood surfaces of the
we ing an its out u sings, fences, porches, and similar appurtanenaent
sha11 be"reasonably protected from the elements and against decay by p
or other approved protective coating applied in a workmanlike fashion.
'MeH,S, F. Electrical System. The electrical system of every dwelling shall not by
reason of overloading,.delapidation, lack of insulation, or improper
fusing, or,for any other cause, expose the occupants to hazards of electrical
shock or to the hazards of fire.
0 0
M,H,$, 1. Every habitable room shall be equipped with a safe electrical switch
located near and convenient to the room entrance which activates an
illuminary within the room.
M.H,$, 2. Every habitable room shall contain at least two (2) separate floor or
wall type electric double convenience outlets which shall be situated
a p q
distance apart equivalent to at least twenty-five (25) percent of
the perimeter of the room; and every toilet room, bathroom, laundry
room, furnace room, and public hail shall contain at least one (1)
supplied ceiling or wall type electric light fixture. Every such
outlet and fixture shall be properly installed and shall be maintained
in good and safe working condition.
G. Maintenance of Gas Appliances and Facilities.
M,H,$, 1. Every gas appliance shall be connected to a gas line with solid metal
piping except that listed metal appliance connectors or semi-rigid
tubing may be used if approved by the Housing Inspector.
MA.S. 2. Every gas pipe shall be sound and tightly put together and shall be
free of leaks, corrosion, or obstruction so as to reduce gas pressure
or volume.
M.H.S. 3. Gas pressure shall be adequate to permit a proper flow of gas from all
open gas valves at all times.
H. Maintenance of Supplied plumbing Fixtures. Every supplied plumbing fixture
and water and waste pipe shat be properly installed and maintained in
good, sanitary working condition.
M,H$, ]. All plumbing shall be so designed and installed as to prevent con-
tamination of the water supply through flow, back siphonage, cross
connection, and any other method of contamination.
M
2.' Water pressure shall be adequate to permit a proper flow of water from ;H,S, all open outlets at all times.
$,R,` I. Surfaces Im ervious to Water. Every toilet room, floor surface, bathroom
floor surface an citcien oor surface shall be constructed and maintained
so as to be reasonably impervious to water and so as to permit such floor
to be easily kept in a clean and sanitary condition.
'. M,H;$,`J. SuDolied Facilities. No owner or operator shall cause any service, facility;
equipment, or utility which is required to be supplied under the provisions
of this Chapter to be removed from or shut off from or discontinued for any
occupied dwelling or dwelling unit let or occupied by him, except for such
temporary -interruption as may be necessary while actual repairs, replacements,
or alterations are being made.
P;D,K Covered Cisterns. All cisterns or similar water storage facilities shall
be fenced, safely covered, or filled in such a way as not to create a
,. hazard to life or limb.
0 0
M,H,S, L.Sealed
Passa es. All pipe passages, chutes, and similar openings through
wa s or f oors shall be adequately enclosed or sealed to prevent the
spread of fire or passage of vermin.
'. M,H,S, M.
Pest Extermination. Every owner of a dwelling containing two (2) or more
dwelling units shall be responsible for the extermination of insects,
rodents, or other pests on the premises. Whenever infestation exists in
two (2) or more of the dwelling units in any dwelling, or in the shared or
public parts of any dwelling containing two (2) or more dwelling units,
extermination thereof shall be the responsibility of the owner.
4B N.
Prohibited Animals. No horse, cow, calf, swine, sheep, goat, chickens,
geese, or ducks shall be kept in any dwelling or part therof. Nor shall
any such animal be kept on the same lot or premises with a dwelling except
under such conditions as may be prescribed by the Housing Inspector.
S, R. 0.
Owner to Let Clean Units. No owner shall occupy or let for occupancy any
vacant dwelling unit or rooming unit it is clean, sanitary and fit for
human occupancy.
M,H,S, P.
Maintains Public Areas. Every owner of a dwelling containing two (2) or
more dwelling units s all be responsible for maintaining in a sanitary
condition the shared or public areas of the dwelling and premises thereof.
r ,
tits) d
er
0
CHAPTER 9.30.8
RESPONSIBILITY OF OCCUPANTS RELATING TO THE
MAINTENANCE OF DWELLINGS AND ROOMING UNITS
M. H, S, A. Occupant Responsible for Controlled Area. Every occupant of a dwelling or
dwelling unit she keep in a clean, safe, and sanitary condition that part
of the dwelling, dwelling unit, and premises thereof he/she occupies and
controls.
1. The floor and floor covering shall be kept reasonably clean and sanitary.
2. Every wall and ceiling shall be reasonably clean and free of dirt or
greasy film.
3. No dwelling or the premises thereof shall be used for the storage or
handling of refuse.
B. Plumbin Fixtures. The occupants of a dwelling unit shall keep all supplied
p umbing fixtures therein in a clean and sanitary condition and shall be
responsible for the exercise of reasonable care in the use and operation
thereof.
MAS. C. Extermination of Pests. Every occupant of a dwelling containing a single
dwelling unit shall be responsible for the extermination of any insects,
rodents, or other pests therein or on the premises; and every occupant of a
dwelling containing more than one (1) dwelling unit shall be responsible
for -such extermination within the unit occupied by him/her whenever said
dwelling unit is the only one infested. Not withstanding, the foregoing
provisions of this subsection, whenever infestation is caused by failure of
the; owner to maintain a dwelling in a reasonably ratproof or reasonably
insect proof condition, extermination shall be the responsibility.of the
owner.
$,-0. Storage and Disposal of Garbage. Storage and disposal of garbage and
F
shall comply with 'th the requirements of the ordinances of the Code of
Iowa City concerning same and the Housing Inspector shall enforce the
.requirements contained therein.
Every occupant of a dwelling containing one (1) or two (2) dwelling
units shall dispose of rubbish, garbage, and any other organic waste
in a clean and sanitary manner, by placing it in approved disposal
facilities or storage containers required by the Ordinances of Iowa
City.
2.`' In dwellings containing one (1) or two (2) dwelling units it shall be
the responsibility of the occupant to furnish adequate garbage and
rubbish disposal facilities or storage containers of approved type and
location.
E. Use and Operation of Supplied Heating Facilities. Every occupant of a
dwelling unit she be responsible for the exercise of reasonable care,
proper use, and proper operation of supplied heating facilities.
;.(7,H;$, F. Electrical Wiring. No temporary wiring or extension cords shall be used in
dwelling units.
• 0
G. Installation of Screens, Storm Doors, and Storm Windows. Every
occupant of a dwelling or dwelling unit shall be responsible for
hanging all screens and double or storm doors and windows whenever the
same are required under the provisions of this Chapter, except where
the owner hds agreed to perform the service.
i
Y
0
CHAPTER 9.30.9
ROOMING HOUSES
No person shall operate a rooming house, or shall occupy or let to another for
occupancy any rooming unit in any rooming house, except in compliance with the
following requirements:
MAS, A. Permit Re wired. No person shall operate a rooming house unless he holds a
va id rooming ouse permit issued by the Department of Housing and Inspection
Services in the name of the operator and for the specific dwelling or
dwelling unit within which the rooming house is contained.
S. R. B.
Application for Permit. The operator shall file, in duplicate, an application
for rooming house permit with the Department of Housing and Inspection
Services on application forms provided by the Housing Inspector. The
operator shall file with the permit application an occupancy permit, issued
by the Inspector of Buildings, for the operation of a rooming house in the
dwelling or dwelling unit designated in the rooming house permit application.
S. R. C.
Issuance of Permit and Occupancy Record Card, Fees. When all applicable
provisions of this Chapter and of any rules and regulations adopted pursuant
thereto, and other applicable codes of the City of Iowa City, have been
complied with by the operator, the Department of Housing and Inspection
Services shall issue a rooming house permit and an occupancy record card
upon the payment of a fee, the amount of which shall be set by Resolution
of the City Council of Iowa City, Iowa. The permit shall state the maximum
.number of persons that may reside in the total of all rooming units or
portions thereof for which the rooming house permit is issued.
SA D.,
Occu anngg Record Card. Every occupancy record shall list the maximum
numer of persons that may reside in the total of all rooming units located
in the dwelling or portions thereof for which the rooming house permit is
`issued. The occupancy record cards shall also list the maximum number of
persons which may occupy each individual rooming unit located in the dwelling
or portions thereof for which the rooming house permit is issued. All of
the rooming units listed on the occupancy record card shall be located in
.such portions of the dwelling as are permitted to be occupied under the
provisions of the occupancy permit filed in accordance with the provisions
of Sections B and E of this chapter.
Every rooming house permit issued by the Department of Housing and Inspection
.Services shall be conspicuously posted by the operator in a public corridor
or hallway or other public portion of the rooming house for which it is
issued and shall remain so posted at all times. Every occupancy record
card shall be posted in the rooming house by the operator in a place where
surh cards are readily accessible for examination by the Housing Inspector.
• 0
$,R, E.
Operator to Control Occupancy. No operator shall at any time allow a
greater number of persons to occupy the total of all rooming units located
within a rooming house than the maximum number of persons listed on the
rooming house permit and the occupancy record cards. No operator shall at
any time allow a greater number of persons to occupy any individual rooming
unit than the maximum number of persons to occupy any individual rooming
unit than the maximum number of persons listed on the occupancy record
cards for each such rooming unit. No operator shall at any time permit any
person to occupy any rooming unit which is not listed on the occupancy
record cards.
F.
$'R'
Nontransferabilit of Permit. No rooming house permit issued under the
provisions of this Chapter 511d1l be transferable and every operator shall
notify the Department of Housing and Inspectin Services in writing within
twenty-four (24) hours after having relinquished proprietorship or having
sold, transferred, given away, or otherwise disposed of such interest or
control of any rooming house, and shall Vle in writing with the Department
of Housing and Inspection Services the name and address of the operator to
whom proprietorship has been relinquished by sale, gift, or other method of
transferal or disposition.
S.R. G.
Relationship of Permit to Building Code. The issuance of a rooming house
permit and occupancy record card to any rooming house shall not in any way
signify or imply that the rooming house conforms with the Fire Code or the
Building and Zoning Code of the City of Iowa City, Iowa. The issuance of a
rooming house permit shall not relieve the owner or operator of the responsibility
for compliance with said Fire, Building, and Zoning Codes.
$OR, H.
A licabilit of Other Sections of This Cha ter. No person shall operate a
rooming ouse unless a of the requirements previously set forth in this
Chapter are complied with. Every dwelling unit located within a rooming
house shall comply with all of the requirements for dwelling units as
established in accordance with the provisions of this Chapter.
$,R, I.
Kee in of Re ister. Every person to whom a rooming house permit has been
issued shat at a times keep a standard hotel register within the rooming
house, in which shall be inscribed the names of all occupants renting or
occupying rooming units in such rooming house. The register shall be
signed by the person renting a rooming unit. After the name or names of
persons renting or occupying any rooming unit, the operator, or his agent,
shall write the number of the room or rooms which each person is to occupy,
together with the date and hour when such room or rooms are rented, all of
-_
which shall be done before such person is permitted ted to occupy such room or
rooms. The register shall be at all times open to inspection by the Housing
Inspector, Building Official, peace officer, or fireman of the City of Iowa
City, Iowa.
SJ. Entry of True Name in Reqister. No person shall write or cause to be , R, written in any rooming house register any other or different name than the
true name of such person or the name by which such person is generally
known.
M.H.S. K. Hearin' When Rooming House Permit is Denied. Any person who application
fora permit to operate a rooming house has been denied may request and
shall be granted a hearing on the matter before the Housing Appeals Board
under the procedure provided by the Administrative Procedures Act of Iowa
City.
M,H,S, L. Suspension of Permit. Whenever upon inspection of any rooming house the
Housing Inspector finds that conditions or practices exist which are in
violation of any provision of this Chapter or of any rule or regulation
adopted pursuant thereto, the Housing Inspector shall give notice in writing
to the operator of such rooming house that unless such conditions or practices
are corrected within a reasonable period, to be determined by the Hpusing
Inspector, the operator's rooming house permit will be suspended. At the
end of such period the Housing Inspector shall re -inspect such rooming
house, and if he finds that such conditions or practices have not been
corrected, he shall suspend the permit and give notice in writing to the
operator that the permit has been suspended.
M,H,$, N.
Permit is Suspended; Revocation of Permit. Any
person whose permit to operate a rooming house has been suspended or who
has received notice from the Housing Inspector that his permit is to be
suspended unless existing conditions or practices at his rooming house are
corrected may request and shall be granted a hearing on the matter before
the Housing Appeals Board under the procedure provided by the Iowa City
Administrative Procedures Act, provided that if no petition for such hearing
is filed within ten (10) days following the day on which such permit was
suspended, such permit shall be deemed to have been automatically revoked.
Upon receipt of notice of permit revocation, the operator shall cease
operation of such rooming house, and after the elapse of a reasonable
period of time, to be determined by the Housing Inspector, no person shall
occupy for sleeping or living purposes any dwelling unit or rooming unit
therein.
M,H,$, N. Toilets and Lavator Basins. At least one (1) toilet, and one (1) lavatory
Fis 5 in goo working condition, shall be supplied for each eight (8)
persons or fraction thereof residing within a rooming house, including
members of the operator's family wherever they share the said facilities;
r provided, that in a rooming house where rooms are let only to males, flush
urinals may be substituted for not more than one-half (�) of the required
number of toilets.
Baths. At least one (1) bath, in good working condition, shall be supplied
for each eight (8) persons or fraction thereof residing within a rooming
house, including members of the operator's family whenever they share the use
of said facilities.
Location:O SanitaEvery toilet, lavatory basin, and bath
s a e ocated wnartmor
rooms which afford privacy to a person
within said room or rooms. All such facilities shall be so located within
the rooming house as to be accessible to the occupants of each rooming unit
sharing such facilities without going outside of the dwelling and without
going through a dwelling unit or through a rooming unit of another occupant.
M.H,$, & Q - tlinimum Floor Area for Slee in Pur oses. Every room occupied for sleeping
purposes by one person shall contain at least eighty (80) square
feet of floor space, and every room occupied for sleeping purposes
by more than one (1) person shall contain at least fifty (50) square
feet of floor space for each occupant thereof. Every rooming unit shall
contain at least four hundred (400) cubic feet of air space for each
occupant thereof.
S.R. R. Maximum Occu anc for Roomin Unit. No rooming unit consisting of only
one habitab a room shall be occupied by more than four (4) occupants.
$;R, S. Numbering of Rooming Units and Dwelling Units. Every rooming unit and
every dwelling unit in every rooming house shall be numbered in a
plain and.conspicuous manner, the number to be placed on the outside
of the door to such rooming unit or dwelling unit. No two (2) doors
shall bear the same number. No number on any door of any rooming unit
or other dwelling unit shall be changed to any other number without
first securing the written approval of the Department of Housing and
Inspection Services.
S.R. T. Residence of Children in Roomin Units Prohibited. No child under
sixteen 6 years of age shall live or sleep in a rooming unit.
$,R,' U. Preparation or Eating of Meals in Rooming Units Prohibited. No
occupant of a rooming house shall prepare or eat meals or store
cooking utensils in a rooming house unless such meals are prepared
or eaten in a dwelling unit contained therein, except that occupants
may prepare and eat meals and store cooking utensils in a communal
kitchen any may eat meals in a communal dining room in accordance with the
provisions of Subsections V and W.
V. Communal Kitchens.
requirements:
A communal kitchen shall comply with the following
1. The minimum floor area of a communal kitchen shall be sixty (60)
f square feet;
2 The minimum floor area of a communal kitchen in which roomers are
permitted to prepare and eat meals shall be one hundred (100)
square feet;
3. A communal kitchen in which occupants are permitted to eat meals
shall be supplied with one (1) dining chair and two (2) lineal
feet of dining table space, in addition to the required surface
area for food preparation required under paragraph 8 below, for
each occupant of a rooming house who is permitted to eat in the
kitchen at any particular time. The surface of each dining
-table shall be smooth, free of cracks, and easily cleanable.
4. A communal kitchen containing less than one hundred (100) square
feet of floor area shall not be used for the eating of meals.
The eating of meals in a rooming house, prepared in such a kitchen,
shall be restricted to a communal dining room which complies with
the provisions of Subsection W.
•
w
5.
It shall
contain at least one (1) supplied kitchen sink of an approved
type;
6.
It shall
contain at least one (1) supplied kitchen gas or electric
range.
Every supplied range shall have at least two (2) top burners
and an oven;
7.
It shall
contain one (1) supplied refrigerator with an adequate food
storage
capacity;
8.
It shall
contain at least one (1) supplied table or other facility
having a
total surface area for food preparation of not less than six
(6) square
feet. The surface of each such table or other facility
shall be
suitable for the preparation of food, smooth, free of cracks,
and easily
cleanable;
9.
It shall
contain at least one (1) suitable supplied cabinet of adequate
size and
suitable for storage of food and eating and cooking utensils;
10. Every communal kitchen shall be located within a room accessible to
the occupant of each rooming unit sharing the use of 'such kitchen,
without going outside of the dwelling and without going through a
dwelling unit or rooming unit of another occupant.
SIR, W. Communal Dining Rooms. Every rooming house, within which the occupant of
any rooming unit is permitted to prepare meals or cook within a communal
kitchen containing less than one hundred (100) square feet of floor area,
as'provided in Section Q, shall contain a communal dining room which complies
<with all of the following requirements:
Every communal dining room shall be located on the same floor of the
c..;.:,..:.'.... rooming house as the communal kitchen and such dining room shall be as
nearly adjacent to the communal kitchen as is practicable;
2. Every communal dining room shall be located within a room accessible
to the occupant of each rooming unit sharing such dining room, without
going outside of the dwelling and without going through a dwelling
unit or rooming unit of another occupant;
3. Every communal dining room shall contain not less than eighty (80)
square feet of floor area;
4. Every communal dining room shall be supplied with one (1) dining chair'
and.two (2) lineal feet of dining table space for each occupant of a
rooming house who is permitted to occupy such a dining room at any
particular time. The surface of each dining table shall be smooth,
free of .cracks, and easily cleanable.
X. Pos
ting of No-Cookin Signs. The operator shall post in every rooming unit
a sign on which shall a written or printed in letters not less than three -
eights (3/8) of one (1). inch in height the following words: "No cooking
Permitted in This Room", and such sign shall remain so posted at all times.
$,R, Y. Bed Linens and Towels. The operator of every rooming house shall change
supplied a inen and towels therein at least once each week and prior to
the letting of any room to any occupant. The operator shall be responsible
for the maintenance of all supplied bedding in a reasonably clean and
sanitary manner.
$,R, Z. Shades, Dra es, Etc.. Every window of every room used for sleeping shall
e supp to with stades, draw drapes, or other devices of materials which,
when properly used, will afford privacy to the occupant of the room.
$,R, AA. Sanitary Maintenance. The operator of every rooming house shall be responsible
for the sanitary maintenance of all walls, floors, and ceilings and for
maintenance of a sanitary condition in every other part of the rooming
house; and he shall be further responsible for the sanitary maintenance of
the entire premises where the entire structure or building within which the
rooming house is contained, is leased or occupied by the owner. The occupant
of every rooming unit shall keep his personal belongings contained within
the unit in a clean, neat, and orderly condition so as to facilitate the
ability of the operator to discharge.his responsibilities for sanitary
maintenance within every rooming unit. as set forth in this subsection.
S,R, BB. Garbage Disposal or Stor9s Adequate garbage and rubbish disposal facilities
or storage containers wfiose type and location are approved shall be supplied
by the rooming house operator. The operator shall be responsible for the
disposal of all garbage in a clean and sanitary manner through the use of
approved mechanical equipment or by placing it in the required containers.
S.R. CC. Han in Screens, Storm Doors, Storm Windows. The operator of a rooming
Ouse s a e responfi a or anging a screens and double or storm
doors and windows whenever the same are required under the provisions of
this ordinance or of any rule or regulation adopted pursuant thereto,
except where the owner has agreed to supply such service. Screens shall be
hung not later than the first day of June each year.
S
$,R,`:; DD. Extermination of Pests. The operator of a rooming house shall be responsible
4 forte extermination of any insects, rodents, or other pests therein; and
he shall be futher responsible for such extermination on the entire premises
where the entire structure or building within which the rooming house is
contained is leased or occupied by the operator. Notwithstanding the
foregoing provisions ions of this subsection, whenever infestation of a rooming
house is caused by failure of the owner to maintain the dwelling within
which the rooming house is contained in a 'ratproof or reasonably insectproof
condition, extermination shall be the responsibility of the owner.
M,H,$,EE. Fire Extinguishers. Fire extinguishers suitable for the occupancy and
r._. _......
whichare approved by the Housing Inspector shall be provided in every
rcoming house. Extinguishers shall be properly hung and shall be maintained
in operable condition at all times.
•
MIH@$, FF. Heatin Units Fire Protected. In every rooming house in which space is
et to more t an four 4 persons and served by a common central heating
system or water heating system, the heating unit or units shall be suitably
enclosed with one (1) hour fire resistive construction including all walls,
ceilings, and doors, or such heating units shall be enclosed in a room
provided with a sprinkler system approved by the Fire Marshal.
Hazardous Stora e. There shall be no transom, window, or door opening into
a public hall from any part of a rooming house where paint, oil, gasoline,
or drugs are stored or kept for the pirpose of sale or otherwise.
q]j HH. Scuttles and Bulkheads. In all rooming houses where there are scuttles or
bu kheads, they and a stairs or ladders leading thereto shall be easily
accessible to all occupants of the building and shall be kept free from
obstruction and ready for use at all times. No scuttle and no bulkhead
door shall at any time be locked with a key, but may be fastened on the
inside by movable bolts or hooks.
4]j IL 'SkylightAccesto Roof. Unless there is a bulkhead in the roof, there shall
be over every inside stairway used by more than one (1) family, a skylight
or scuttle not less than two feet by 3 feet (2'X3') in size. Every flat roof
rooming house exceeding one (1) story in height shall have at least one (1)
' convenient and permanent means of access to the roof located in a public
. part of the building and not in a room or closet.
JJ. Safe Storage Required. Rooming houses shall provide for every rooming unit
a TactTity for the safe storage of drugs and household poisons.
KK. Ways of Egress Every rooming house shall have at least two (2) independent
$ ways of egress from each floor level as approved by the Fire Marshal.
R
�t 1 No existing fire escape shall be deemed a sufficient means of egress
unless it is in compliance with the Building and Fires Codes of Iowa City.
" 2. All means of egress shall be maintained in a good state of repair and shall
be free of obstruction at all times.
3. Whenever fire escapes on a rooming house are rusty,
them properly painted with two (2) coats of paint.
the owner shall have
CHAPTER 9.30.10
MULTIPLE DWELLINGS
No person shall operate a multiple dwelling, or shall occupy or let to another
for occupancy any dwelling unit in any multiple dwelling, except in compliance
with the following requirements:
M,H,S, A.
S. R.
Permit Required. No person shall operate a multiple dwelling unless he
o s a va id multiple dwelling permit issued by the Department of Housing
and Inspection Services in the name of the operator and for the specific
dwelling or dwelling units.
B. A lication for Permit. The operator shall file, in duplicate, an application
for mu tiple we ling permit with the Department of Housing and Inspection
Services on application forms provided by the Housing Inspector. The
operator shall file with the permit application, an occupancy permit,
issued by the Inspector of Buildings, for the operation of a multiple
dwelling.
S, R. - C. Issuance of Permit.and Occu enc Record Card, Fees. When all applicable
provisions of this Chapter and of any rules and regulations adopted pursuant
_ thereto, and other applicable codes of the City of Iowa City, have been
complied with by the operator, the Department of Housing and Inspection
Services shall issue a multiple dwelling permit and an occupancy record
card upon the payment of a fee, the amount of which shall be set by Resolution
of the City Council of Iowa City, Iowa. The permit shall state the maximum
number persons that may reside in the total of all dwelling units or portions
thereof for which the multiple dwelling permit is issued.
S. R.' D. Accd anc Record Card. Every occupancy record shall list the maximum
num er of persons that may reside in the total of all dwelling units
located in the dwelling for which the permit is issued. The occupancy
record cards shall also list the maximum number of persons which may
occupy each individual dwelling unit located in said dwelling. All of the
dwelling units listed on the occupancy record card shall be located in such
portions of the dwelling as are permitted to be occupied under the provisions
of the occupancy permit files in accordance with the provisions of Sections
B and E of this Chapter.
Every multiple dwelling permit issued by the Department of Housing and
Inspection Services shall be conspicuously posted by the operator in a
public corridor or hallway or other public portion of the multiple dwelling
for which it is issued and shall remain so posted at all times. Every
occupancy record card shall be posted in the multiple dwelling by the
operator in a place where such cards are readily accessible for examination
by the Housing Inspector.
E. O erator to Control Occu ane . No operator shall at any time allow a
greater num er o 'persons to occupy the total of all dwelling units located
within a multiple dwelling than the maximum number of persons listed on the
multiple dwelling permit and the occupancy record cards. No operator shall
at any time allow a greater number of persons to occupy any individual
dwelling unit than the maximum number of persons listed on the occupancy
record cards for each such dwelling unit. No operator shall at any time
permit any person to occupy any dwelling unit . No operator shall at any
S,R,
S. R,
time permit any person to occupy any dwelling unit which is not listed on
the occupancy record cards.
F. Nontransferability of Permit. No multiple dwelling permit issued under the
provisions of this Chapter shall be transferable and every operator shall
notify the Department of Housing and Inspection Services in writing within
twenty-four (24) hours after having relinquished proprietorship or having
sold, transferred, given away, or otherwise disposed of such interest or
control of any multiple dwelling, and shall file in writing with the Department
of Housing and Inspection Services the name and address of the operator to
whom proprietorship has been relinquished by sale, gift, or other method of
transferal or disposition.
G. Relations hi of Permit to Buildin Code. The issuance of a multiple
we ing permit an occupancy record card to any multiple dwelling shall
not in any way signify or imply that the multiple dwelling conforms with
the Fire Code or the Building and Zoning Codes of the City of Iowa City,
Iowa; The issuance of a multiple dwelling permit shall not relieve the
owner or operator of the responsibility for compliance with said Fire,
Building, and Zoning Codes.
$,R, H.
A licabilit of Other Sections. of This Cha ter. No person shall operate
a mu tiple awe ing un ess al of the requirements for dwelling units as
-
previously set forth in this Chapter are complied with.
M,H,S,.I.
Hearing 'IV tdultiple Dwelling Permit is Denied. Any person whose application
fora permit to operate a mu tip a dwelling has been denied may request and
shall be granted a heering on the matt^r before the Housing Appeals Board
under the procedure provided by the Administrative Procedures Act of Iowa
City.
,...> .
M,H,$, J.
Sus egj?q o Permit. Whenever upon inspection of any multiple dwelling
theousing Inspector finds that conditions or practices exist which are
in violation of any provision of this Chapter or of any rule.or regulation
adopted pursuant thereto, the Housing Inspector shall give notice in
writing to the operator of such multiple dwelling that unless such conditions
or practices are corrected within a reasonable period, to be determined by
the Housing Inspector, the operator's multiple dwelling permit will be
suspended. At the end of such period, the Housing Inspector shall re-
inspect such multiple dwelling and, if he finds that such conditions or
practices have not been corrected, he shall suspend the permit and give
notice in writing to the operator that the latter's permit has been suspended.
M,H,$, K.
Hearing When Multi le DweIlin Permit is Sus ended; Revocation of Permit.
n1ny person w ose permit to operate a mu tip a dwe ing has een suspended _
or who has received notice from the Housing Inspector that his permit is to
be suspended unless existing conditions or practices at his multiple dwelling
are corrected may request and shall be granted a hearing on the matter
before the Housing Appeals Board under the procedure provided by the Administrative
Procedures Act of Iowa City, provided that, if no petition for such hearing
is filed within ten (10) days following the day on which such permit was
-suspended, such permit shall be deemed to been automatically revoked. Upon
M.H.S.
413
S. R.
L
M.
0
0
receipt of notice of permit revocation, the operator shall cease operation
of such multiple dwelling, and after the elapse of a reasonable period of
time, to be determined by the Housing Inspector, no person shall occupy for
sleeping or living purposes any dwelling unit or rooming unit therein.
Minimum Floor Area for Slee in Pur oses. Every room occupied for sleeping
purposes by one person shall contain at least eighty
of floor space, and every room occupied for sleepingg y (ses square feet
one (1) person shall contain at least fifty (50)s arerfeetsof more than
for each occupant thereof. q f floor space
Numberin of Dwelling Units. Every dwelling unit in every multiple dwelling
s a e num ered in a p a m and conspicuous manner, the number to be
placed on the outside of the door to such dwelling unit. No two (2) doors
shall bear the same number. No number on any door of any dwelling unit
shall be changed to any other number without first securing the written
approval of the Department of Housing and Inspection Services.
Fire Extinguishers. Fire extinguishers suitable for the occupancy and
w is are approved by the Housing Inspector shall be provided in every
multiple dwelling. Extinguishers shall be properly hung and shall be
maintained '
in operable condition at all times.
0. �eacam 05• Units Fire Protected. In every multiple dwelling served by a
common centra .,eating system or water heating system, the heating unit or
units shall be suitably enclosed with one (i) hour fire resistive construction
including all walls, ceilings, and doors, or such heating units shall be
enclosed in a room provided with a sprinkler system approved by the Fire
Marshal.
Operator to Maintain Orderl Premises. The operator of every multiple
welling shall at a times maintain the premises the, grounds in an orderly
i manner and free of uncontrolled materials which are hazardous to life,
health, or property.
413 Q. Hazardous Stora e. There shall be not transom, window, or door opening
L into a pub is ha from any part of a multiple dwelling where paint, oil,
gasoline, or drugs are stored or kept for the purpose of sale or otherwise.
413: R. Closets.; In multiple dwellings hereafter erected no closet of any kind
s a e constructed under any staircase leading from the entrance story to
the upper stories, but such space shall be left entirely open and kept
clear and free from encumbrance.
S. Ce11ar Entrance. In every multiple dwelling hereafter erected there shall
Be an entrance to the cellar or other lowest story from the outside of the
building;
413 T. Scuttles and Bulkheads. In all multiple dwellings where there are scuttles
or u thea s, they an all stairs or ladders leading thereto shall be
easily accessible to all occupants of the building and shall be kept free
from obstruction and ready for use at all times. No scuttle and no bulkhead
door shall at any time be locked with a key, but may be fastened on the
inside by movable bolts or hooks.
U. Slight Access to Roof. Unless there is a bulkhead in the roof, there shall
e overt e�nside stairway used by more than one (1) family, a skylight
or scuttle not less than two feet by 3 three feet (2'X3') in size. Every
flat roof multiple dwelling exceeding one (1) story in height shall have
at least one (1) convenient and permanent means of access to the roof located
in a public part of the building and not in a room or closet.
P,Dr' V.
Safe Storage Required. Multiple dwellings shall provide a facility for the
safe storage of drugs and household poisons in every dwelling unit.
W.
Wa s of E ress. Every multiple dwelling shall have at least two (2)
,& 4
indepen ent ways of egress from each floor level as approved by the Fire
;,;:....
Marshal.
1. No existing fire escape shall be deemed a sufficient means of egress
ry
unless it is in compliance with the Building and Fire Codes of Iowa
City.
'
2.All means of egress shall be maintained in a good state of repair and
shall be
free of obstruction at all times.
`
3: Whenever fire escapes on a multiple dwelling are rusty, the owner shall
them
have properly painted with two (2) coats of paint.
CHAPTER 9.30.11
ALTERATIONS
473 A. No dwelling shall hereafter be enlarged or its lot diminshed, or other building
placed on the lot, so that the rear yard or side yard shall be less in size than
the minimum sizes prescribed herein for dwellings nereafter erected.
- 413 B. An inner court hereafter constructed in a dwelling erected prior to the passage
of this chapter, if extending only through one (1) or two (2) stories, shall be
not less than six (6) feet by eight (8) feet in size; and if it extends through
more than two (2) stories, it shall be not less than eight (8) feet by ten (10)
feet in size. All inner courts shall be opened to the sky, without skylight, or
roof of any kind.
4B C. Any, additional room or hall that is hereafter constructed or created in a
dwelling shall comply in all respects with the provisions of this chapter with
reference to dwellings hereafter erected, except that it may be of the same
height as the other rooms of the same story of the dwelling.
413 D. No dwelling shall be so altered or its lot diminished that any room or public
hall or stairs shall have its light or ventilation diminished in any way not
approved by the Housing Inspector.
(a3 E. No stairs leading to the roof in any multiple dwelling shall be removed or be
replaced with a ladder.
4]3;. F No dwelling shall be increased in height so that it exceeds one and one-half
'(13j) times the width of the widest street on which it abuts nor in any case
exceeds one hundred (100) feet.
4]j G ' Except as specified above, no dwelling shall be so altered nor shall its lot be
so diminished, nor shall any building be so placed on the same lot, as to cause
zIthe`dwelling to be in violation of the requirements of this chapter for dwellings
hereafter erected; nor shall any room, public hall, or stairs have its light or
ventilation diminished in any way not approved by the housing inspector.
4]3 H All new skylights hereafter placed in a multiple dwelling shall be provided with
ventilators having a minimum opening of forty (40) square inches and also with
either fixed or movable louvers or with movable sashes, and shall be of such
size as may be determined to be practicable by the Housing Inspector.
S. R. A
0
CHAPTER 9.30.12
REMEDIES
Inspector to Determine Occupancy. The Housing Inspector may prohibit in any
multiple dwelling or rooming house the letting of lodgings therein by any of
the tenants occupying such multiple dwelling or rooming house, and may prescribe
conditions under which lodgers or roomers may be taken in such dwellings. It
shall be the duty of the owner to see that the requirements of,the Housing
Inspector in this regard are at all times complied with, and a failure to so
comply on the part of any tenant, after due and proper notice for said owner or
from the Housing Inspector, shall be deemed sufficient cause for the summary
eviction of such tenant and the cancellation of his lease. The provisions of
this section may be extended to private dwellings and two (2) family dwellings,
as may be found necessary by the Housing Inspector.
M,H,S,B. Unfit for Habitation. Any dwelling, dwelling units, or rooming unit which shall
e found to have any of the following defects shall be condemned as unfit for
human habitation and shall be so designated and placarded by the Housing Inspector:
1. One which is so damaged, decayed, dilapidated, unsanitary, unsafe, or vermin
infested that it creates a serious hazard to the health or safety of the
occupants or of the public.
2. One which lacks light, ventilation, or sanitation facilities adequate to
protect the health or safety of the occupants or of the public.
3..One which, because of its general conditions or location, is unsanitary or
otherwise dangerous to the health or safety of the occupants or of the public.
C Condemnation Procedures. The Housing Inspector shall leave a reasonable period of
time,;: ut not more than six (6) months, between the time he placards the property
and the time he begins condemnation proceedings if remedial action is not taken
toicorrect the situation for which the dwelling was placarded.
M,H,S,D. 'Vacate. Condemned Dwellin Any dwelling or any portion thereof condemned as unfit
for uman a station an so designated and placarded by the Housing Inspector shall
be vacated immediately or as ordered by the Housing Inspector.
To Re—Occupy Condemned Dwelling. No dwelling or portion thereof which has been
condemned an p acus unfit for human habitation shall again be unsed for
human habitation until written approved is secured from, and such placard is
removed by,,the Housing Inspector. The Housing Inspector shall remove such placard
I herever the defect or defects upon which the condemnation and placarding action
were based have been eliminated.
M,H,S,F. Reaoval•:of Placard Prohibited. No person shall deface or remove the placard
�1A from any
dwelling, we ing unit, or rooming unit which has been condemned as
unfit for human habitation and placarded as such, except as provided in subsection
9.30.14.E.
i
S, R,
CHAPTER 9.30.13
RETALIATORY CONDUCT PROHIBITED
A. Retaliatory Conduct Defined. Retaliatory conduct is an increase in rent or other
fees, a decrease in services, a termination or threat of termination of a rental
agreement, the bringing on the threat of bringing an action for possession which
is the result of the tenant doing any one of the following:
I . The tenant has complained to a governmental agency charged with responsibility
for enforcement of a safety or health code of a violation applicable to the
premises materially affecting health and safety; or
2. The tenant has complained to the owner or operator of such a violation; or
3. The tenant.has organized or become a member of a tenant's union or similar
organization.
$,R, 'B.
Presumption of Retaliatory Conduct. In any action by or against the tenant, evidence
owner or operator acts or engages in
of a complaint or other protected activity within six (6) months before the action
creates a presumption that the'conduct on the part of the owner or operator was
a defense in any action against him for eviction. In
retaliatory in nature. This presumption does not arise if the tenant engaged in
,
addition, the tenant may recover possession or terminate the
such protected activity after notice of a proposed rental or fee increase, diminution
of services or termination of rental agreement. "Presumption" means that the
is terminated, the owner or operator
trier of fact must find the existence of the fact presumed unless and until evidence
is introduced which would support a finding of its nonexistenance.
C.---
Owner's Rights. Notwithstanding other provisions of this ordinance, an owner or
operator may increase rent or other fees, decrease services, terminate a rental
agreement, bring an action for possession or act otherwise upon a showing of, but
not limited to, the following:
r
1. ,The condition or conditions found in violation of the health and safety
s
codes were directly caused by the tenant or the members of the tenant's
family beyond ordinary wear and tear.
2. The tenant has refused entry at reasonable times to the owner or operator or
agent of either to the premises for the purpose of correcting such condition
`
or conditions.
' 3:.. 'Compliance with applicable safety or health codes require a reduction in
services or an alteration, remodeling, or demolition which would effectively
deprive the tenant of use of the leased premises.
4 The tenant is in default in rent.
D.
Tenant Defense. :If the
owner or operator acts or engages in
retaliatory conduct as
eine t e tenant has
a defense in any action against him for eviction. In
,
addition, the tenant may recover possession or terminate the
rental agreement.
If the rental agreement
is terminated, the owner or operator
shall return any
and all amounts already
paid by the tenant to which the owner
or operator is not
legally entitled.
0
11
CHAPTER 9.30.14 - 111 NT Wl'IHHOLDIN0
A. Noncompliance:
Fjk,F0
T 51977
ABBIE STOLFUS
CITY CLERK
1. Uci0sit in Escrow. oNotwithstanding any other provision of law or any agree-
ment, w et er oral r written, if a lessor of residential premises, except
rooming houses licensed under Section 9.30.9 of the code, or owner occupied
two family dwellings, within the City of Iowa City fails or neglects to com-
ply with an order of the (lousing Inspector to correct a violation of the
Iowa City Building and Zoning Code, the (lousing Inspector must, upon the
expiration of the original notice of such violation, authorize the lessee of
said premises in writing to deposit his rental payments into an escrow account
designated by the Housing Inspector.
2. Proper Appeal. Authorizations by the Housing Inspector to deposit rental pay-
ments into an escrow account pursuant to Section 9.30.14.A.1 above shall be
stayed in the event that a proper appeal is made to the Housing Appeals Board
in the manner and within the time period provided by the Administrative Pro-
cedures Act of Iowa City. In hearing such appeals the Board shall have the
power to affirm or reverse the authorization of rent withholding or extend
the time for the commencement of rent withholding. The Board, and only said
Board, shall have the power to determine which, if any, of said violations was
caused by the negligence of the tenants and, in such event, shall make a spec-
ific finding of such fact: however, this finding shall not affect the respon-
sibility of the party charged with the duty under the code to repair and cor-
rect said violations, but the Board shall authorize rent withholding under
this section in such instances to continue only until such nontenant caused
violations are certified as corrected by the Housing Inspector.
B. .Remedy Non-exclusive:
The right of lessee to deposit his rental payments into the escrow account estab-
lished by this section shall not preclude or effect in any way his right to avail
himself of any of the remedies provided by the laws of the State of Iowa pertain-
ing,to the relationship of landlord and tenant.
C. Release of Escrow Monies:
Monies deposited in the escrow account shall be released under the following terms
and conditions:
1. To th!; lessor upon certification by the Division of Housing Inspection of the
City -'of Iowa City that all violations of the Housing and Zoning Code have been
Completely corrected. Certification shall be deemed to mean that the premises,
at the time of inspection for certification, are free of any violation of the
(lousing and Zoning Code; or
2. Monies deposited in such escrow account may also be pledged by the landlord
or his agent as security for the cost of making whatever repairs are required
in order to completely correct all the existing violations on the premises,
or such monies may also be released by the escrow agent upon presentation to
said escrow agent of the billing for the work approved or countersigned by
the Division of Housing Inspection of the City of Iowa City and the certifica-
tion by the Division of Housing Inspection of the City of Iowa City that the
i. repair work has been done; or
{Ltd u.;, 0H 111 latn_(,.1'.tl'Z-
3 771 A
CHAPTER 9.30.14 - RWI WITHHOLDING
A. Noncompliance:
1, De osit in Escrow. Notwithstanding any other provision of law or any agree-
ment, whet er oral or written, if a lessor of residential premises, except
rooming houses licensed under Section 9.30.9 of the code, or owner occupied
two family dwellings, within the City of Iowa City fails or neglects to com-
ply with an order of the (lousing Inspector to correct a violation of the
Iowa City Building and Zoning Code, the Housing Inspector must, upon the
expiration of the original notice of such violation, authorize the lessee of
said premises in writing to deposit his rental payments into an escrow account
designated by the Housing inspector.
2. Proper Appeal. Authorizations by the Housing Inspector to deposit rental pay-
ments into an escrow account pursuant to Section 9.30.14.A.1 above shall be
stayed in the event that a proper appeal is made to the Housing Appeals Board
in the manner and within the time period provided by the Administrative Pro-
cedures Act of Iowa City. In hearing such appeals the Board shall have the
power to affirm or reverse the authorization of rent withholding or extend
the time for the commencement of rent withholding. The Board, and only said
Board, shall have the power to determine which, if any, of said violations was
caused by the negligence of the tenants and, in such event, shall make a spec-
ific finding of such fact: however, this finding shall not affect the respon-
sibility of the party charged with the duty under the code to repair and cor-
rect said violations, but the Board shall authorize rent withholding under
this section in such instances to continue only until such nontenant caused
violations are certified as corrected by the Housing Inspector.
B. Remedy Non-exclusive:
The right of lessee to deposit his rental payments into the escrow account estab-
lished by this section shall not preclude or effect in any way his right to avail
himself of any of the remedies provided by the laws of the State of Iowa pertain-
ing to the relationship of landlord and tenant.
C. Release of Escrow Monies:
Monies deposited in the escrow account shall be released under the following terms
and conditions:
1. To the lessor upon certification by the Division of Housing Inspection of the
City of Iowa City that all violations of the Housing and Zoning Code have been
completely corrected. Certification shall be deemed to mean that the premises,
at the time of inspection for certification, are free of any violation of the
Housing and Zoning Code; or
2. Monies deposited in such escrow account may also be pledged by the landlord
or his agent as security for the cost of making whatever repairs are required
in order to completely correct all the existing violations on the premises,
or such monies may also be released by the escrow agent upon presentation to
said escrow agent of the billing for the work approved or countersigned by
the Division of (lousing Inspection of the City of Iowa City and the certifica-
tion by the Division of Housing Inspection of the City of Iowa City that the
repair work has been done; or
37714
r
0
3. To any receiver for the premises appointed by a Court of competent jurisdic-
tion.
D. Orders Apply:
The provisions of Section 9.30.3 of the Iowa City Code relating to enforcement,
notice and hearings applicable to orders issued by the (lousing Inspector are
hereby made applicable to orders issued by the Housing Inspector pursuant to this
section.
E. Eviction or Retaliation:
No person or lessee who complains to the Housing Inspector of violations of
this code or complies with this section shall be evicted for nonpayment of
rent or because said person or lessee has elected to act under said section,
so long as rent is being deposited by that lessee in the escrow account
approved by the City for the receipt of such rental amounts.
No person, tenant, or lessee shall be evicted or retaliated against for com-
plaining of violations of this code or for complying with this section, and
it shall be presumed that any attempt to terminate the tenancy of such lessee
or to evict such lessee or to raise such lessee's rental payments or to other-
wise harass or retaliate against such tenant during the period from the first
complaint to the Housing Inspector to six (6) months after the certification
by the Department of Housing $ Inspection Services of the City of Iowa City
that all violations have been corrected is done in retaliation for the lessee's
complaint to the (lousing Inspector of a violation of this code or for his or
her compliance with this section and is hereby declared null and void and
subject to a fine of not less than fifty dollars ($50.00) nor more than one
hundred dollars ($100.00) for each such attempt; provided, however, that such
a lessee may be evicted by the lessor for the lessee's failure to pay rent into
the escrow account when due or if the lessee damages the property. It is fur-
ther provided that in order to overcome such presumption, the lessor must show
by a preponderance of the evidence that such acts by him were based upon good
cause; "good cause" as used herein means that the lessor must show a good
reason for his action, other than one related to or caused by the operation
of this ordinance, such as normal rental increases due to tax increases or
increased maintenance costs.
F. Violations Subject to Prosecution:
It is the intent of this section that any use of rent withholding will not prohibit
the Housing Inspector from prosecuting violations of the code relating to said pro-
perty.
G. Coercion:
Any person who accepts, as a result of harassment or coercion, rental payments
for premises subject to rent withholding under this ordinance shall be subject
to a fine of not less than fifty dollars ($50.00) nor more than one hundred
dollars ($100.00) whether said rental payments are tendered by or on behalf of
the lessee occupying the premises at the time rent withholding is authorized
by, or on behalf of, any subsequent or other lessee who occupies the premises
during the existence of such rent withholding authorization. Each such pay-
ment accepted shall constitute a separate violation.
`J
Z. Any tenant who willfully and maliciously uses or attempts to use this
ordinance to harass a lessor shall be fined not less than fifty dollars
($50.00) nor more than one hundred dollars ($100.00).
city
of Iowa CI*
DATE: September 20, 1977
TO: City Council
FROM: City Clerk
RE: Attached statements
Attached are statements presented at the Tenant -Landlord Ordinance
hearing on September 13, 1977.
3772
ppIfA
T am urging you to pass tile.d'renant Landlord Ordinance nncbanged, In particular,
io.a.1,
1 would like to see clause ',X'_ which deals with discrimination in housing
on the basis of sex, marital status and affectiunal preference, retained.
Tf you recall, on March 15. t',e day of the public *earing on the liuman Rights
Ordinance. not one person rose to speak against its passage. Many targeted
their remarks specifically to t',e discrimination in 'ousing issue, Yet
tv.z•5
that clause nearly identical to this clause 'fir, was struck from that
Ordinance's final draft.
I want to know hod you justified leaving so many Iowa cittans vulnerable to
discrimination in housing? To p,,t it more precisely, who exactly would be
harmed by extending this protection to these inidividuals?
The obvious candidate would be the landlords, One wield think that landlords,
as business persons would be willing to rent to anybody who were fit tenants.
That is. who would keep their apartments reasonably clean, who would leave
their apartments in good repair, who wolold be considerate of L'•eir neighbors
and w'•o would pay their rent on time,
Can you produce any statistics which conclude that unmarried couples, singles
and Kays are less likely to be fit tenants than anyone else?
'fills Ordinance, along with moot of the leases now being used in Iowa City.
spells out the obligations that tenants must fullfill, Implicit is the remedy
a landlord may take in the event that a tenant fails to meet these obligations.
Oft heard is the concern that a landlord may meet with a charge of discriminati-)n
when trying to remove a tenant who legitimately is unfit. Surely, landlords
would be able to marshall the necessary evidence. testimony, etc, to demonstrate
the validity of t cir case. There would be no Lnjnstice done to landlords
by securing protection against discrimination in horsing Sr those persons
u. z, s
mentioned in clause V.
There woeld be no injustice done to the person who lives in Lhe some dwelling
teat he or she rents. That person is exempt by the ordinance.
Finally, there would be no injustice done to potential renters who are
mistaken for being gay, unmarried. etc., but who in fact are not, To deny
these people housing would be as unpardonable as it would be absurdl
u
0
0
un behalf of the Burkley Apts. Tenants Association I submit
to the Council copies of the correspondence .rnd houninf; inspucturs'
reports on our building for the past year to illustrate why the
Tenant -Landlord Ordinance is needed in Iowa City.
people :it, the Burkley formed a tenants' union last November.
ae began meeting because we found we all had :;imil,rr complaints
and were tired of feeling frustrated and powerless and ripped off
because repairs took months to get done, if they were done at all.
we were tired of leaky radiators, broken windows, roaches, drippy
fo-nacets, ovens that didn't work, falling ceiling tiles and plaster,
and plumbing problems.
rhe called the housing inspectors in November, and they inspected
8 units. As a result, a two-page letter of violations was sent to
the owners. They had until February to make the repairs. In
February these 8 units were reinspected, and the rem;:rinin. 18 units
of the building were inspected. A five-page letter of vi.olations
resulted. I+ost of the repairs were made by June, but the apartments
slated to be plastered and painted have not been done nor have the
kitchen and bathroom vent fans in 13 apartments been installed.
rior will these be installed shortly because first the electrical
system needs overhauling.
No, our problems are not over. Finally. after a year of working
•te get things done, the management and owners are responsive to
some of our requests. They have agreed to negotiate some Of the
clauses of the lease which we consider unfair or unforceable. But
the big bugaboo still remains -- they will not comu:it themselves
to giving us deadline dates for repairs that are needed. Their
explanation is that it is hard to get craftsmen to do the work
ami therefore they cannot give us any dates.
So our main problem is still not solved. That is why the
• - ?
'tenant -Landlord Ordinance is so necessary. If an owner or manager
or
is uncooperative am negligent about making repairs, the tenant
can take action to get things rollinj;. A:; At i^ now, tenants
hive very little bargaininC power in this town. It's time our
rithts are clarified and protected. Passage of the ordinance
•sill ensure this happening.
Valerie A. +silk
130 E. Jefferson
v .:n LGUa
J. Janr. (a+ 3•!/.3709
Dunne L. Euhovil
IOX r: CI tl R )VI I
n•o ,nr
91'1 U.•, II"Jdunl
4`3 h&
Crest Townhouse, Inc.
c/o Donald R. Peters
Spencer, Iowa
Sir:
I have agreed to represent a group of concerned tenants of your
apartment complex. at 130 East jeffersonStreet, IowatCity,
er Iowa.
You should have received copy of the
tioned
"Notice of Determination of Violation" from the housing inspector.
Although the list includes faulty wiring,'falling plaster, and
bad radiator regulation, the main concern is wi.tti the cockroaches.
We feel that more spraying would remedy the si.tuation. I•'urrher,
aarbaae disposal should he moved to the outside of the complex..
Since several tenants have agreed to assist the elderly in the
building, there appears no reason why such disposal cannot be
made outside. In addition, we would like to see the of -her
violaticns cleared up as soon as possible. Could you please
give us some progress report?
Barbara Yates
Attorney at Law
cc: EouFing Inspector, David Malone
Dean Oakes
57.0 E. Burlington
:ity Holl-.In,.ocaia'on
IN.SUR-ORS,
1
December 29, 1976
Ms. Barbara Yates
Fox & Rohovit Law Office
212 Day Building
Iowa City, Iowa 52240
RE: Crest Town House, Inc.
P.O. Drawer 1067 SPENCER, IOW 51301 Phone 712/262.5446 J
P.O. Drawer 185 MILFORD, IOWA 51351 Phone 712/338.2441
P.O. Drawer P SPIRIT LAKE, IOWA 51360 Phone 712/336.1850
Archilarls of [Inonrlal and Insurance Planning
Dear Ms. Yates:
In regard to your letter of the 13th and my phone cal I , General Pest is now servicing
every month. Their complaint was that they had left signs requesting a call if any
"bugs" appeared when they were servicing every three months.
I have also instructed our manager to purchase a large metal dumpsler for use
outside the premises; other items listed are being scheduled.
Very tTul yours,
Don Peters
OP/pke
c.c. Frank B. Nelson
Proffesional Building
Spencer, Iowa
Dean Oakes
510 E. Burlington
Iowa City, Iowa
' J.1 '. A
row
�.
February 2, 1977 R;
q
Crest Townhouse, Inc.
c/o Donald R. Peters
Spencer, Iowa 51301
'
'Sir:
Since receipt of your letter of December 29, 1976 and our phone'
conversation concerning your apartment complex at 130 E. Jefferson,
Iowa city, I have been in contact with a representative of the group•'.• :.
of concerned tenants. As of February 1, to my knowledge the exter-
minatbr.:did spray for the month of January; however, only one other " _
violation has been corrected (installation of outlets in 031)
Faulty wiring, plumbing defects, falling plaster, and faulty,radi-
ators continue to be a problem. -in addition, the dumpater has not
been installed yet.
The tenants would like a more exact schedule of when these deficiencies;..
will be taken care of. Please feel free to contact me at 337-3702:.,;;;:...:.`.,
Sinc rely, ;e"' :`ry' S
4111
r. 4
Barbarates
Attorne at Law a '
cc: David Malone, Housing Inspector `✓' "'
Dean Oakes
1 /
t1 • •
Crest Townhouse, Inc. �\ March 7, 1977
Professional Building
Spencer, IA 51301 `
Sirs,
We tenants of Burk ley Apartmnu L::, 130 C. Jefferson St., Iowa
City, wish to discus:; I.hc recent. rnpoirs of the premises and address
additional areas of guncral cuncnrn.
We are enclosing copies of the housing inspectors' reports of
November 22, 1976 and February 23, 1977 and have checked off the
deficiencies that have been corrected. Thank you l'or your cooperation
with these repairs. However, we must add that some df the repairs have
not been satisfactory. For example, in the bedroom of Apt. 27 the old,
chipped, dirty ceiling tile; that had fallen clown were nailed back into
place. Apt. 2 has a piece of plywood nailed on the ceiling of the main
living area to replace a fallen tile. In Apt. 36 the living room window
was repaired and reinstalled and now it is impossible to open the window.
We are interested in efficient repairs, but hasty, poor quality work is
no real solution.
We are also enclosing a list of additional repairs needed in
various apartments that were not mentioned in the housing inspectors'
reports.
Additionally, there are some major areas of concern that are not
dealt with in the housing inspectors' reports. These can be divided
into two categories: items easily remedied and more extensive problems.
The first category includes:
1. A fire alarm system - Our primary concern is safety. There
is no fire alarm system in the building. If a fire broke out on
first or second floor it might very well be too late by the time
third. and fourth floor tenants were aware of the danger. We
have noticed that recently some sort of bell has been installed
at the top of the stairway on second floor. Is this the first
step in installing an alarm system throughout the entire building?
We request that procedures in case of a fire be posted in the
building also.
2. Fire escapes - We question the safety of both fire escapes.
The one on the south wall is especially perilous. It is merely
a ladder extending from the fourth floor to the roof over the front
entrance. If a fire were to occur and many people from fourth
floor tried to climb down the ladder, there is a very real
possibility that people could fall off the ladder in their haste
to descend and/or that the ladder could become detached from the
building and a tragedy result. The north fire escape does not
seem securely fastened to the wall. Bricks have loosened under
the third floor window as a result of the building settling and
this is one of the points of attachment of the fire escape.
3. Maintenance - The infrequent cleaning of the halls, lobby,
and stairways is a maLter of jesioral concern. A maintenance
person is needed to perform thin Lank all a weekly basis as well
as to do the whole range of necessary repairs in both our apart-
ment complex and the 115 N. Dubuque St. building. With such an
arrangement repairs could be done more speedily and, hopefully,
would be of a better quality.
4. Roaches - With the installation of the dumpsters (at present
there is only one for each buildin(l) and a more frequent schedule
of spraying, the problems with roaches have diminished somewhat.
However, to bring this situation down to a truly manageable level
we believe that spraying must be carried out on a very strict
schedule and that sprayings should be increased to every two weeks
for the next two -three months. Spraying shculd also include the
basement. Another alternative is to fumigate the building. We
realize that concomittant with management efforts to alleviate this
problem are tenant responsibilities to maintain apartments clean
and free of garbage. We have discussed this responsibility of ours
at our last tenant meeting and will be especially
careful
this
in
the future. Those people not at the meeting are being contact
ed
about this matter.
More extensive repairs include:
1. Structural repairs - The roof and eaves need repair. The eaves
need cleaning and repairing; in places (for example, the northeast
corner) the downspouts have become disconnected from the save
trough and must be reconnected. At present water runs down the
sides of the building. This is the case with the east wall where
this lack of proper drainage is causing softening of the bricks to
the extent that water runs into Apt. 30 and has caused damage to
the inner wall. This situation was "remedied" in February by
covering the affected wall with paneling. This is no solution.
The entire east wall will continue to soften and eventually will
reach an irreparable state if no true corrective measures are taken.
2. Electrical wiring - Open fusing in the basement should be
rewired into circuit breaker boxes for greater safety. Also, we
ask that within a month work be begun on installing an additional
circuit to each apartment, beginning with the two-bedroom apart-
ments and those with several major appliances. Adding another
circuit to each apartment will decrease the load on the existing
circuit and create a safer electrical situation. Conduits could be
run up the outside of the building. This work could be completed
over a five-year period.
3. Recaulkina windows - The outer caulking on the windows is
badly in need of repair. On two separate occasions panes of glass
fell out of east side apartments (one on third, one on fourth fl -or).
Luckily no pedestrians were walking on Dubuque St. when either o:
these incidents occurred. This is obviously a very dangerous
situation and of utmost concern to us all.
0
— 3 —
0
We ask that you submit a schedule outlining repair dates for
each of the abovementioned points in each ca Legory, as well as
for the attached list of necessary repairs in the various apartments,
to our attorney, Barbara Yates (212 Dey Building, Iowa City, 337-3702)
by March 31, 1977.
We wish to maintain open communication with the management
concerning all aspects o8 impruvemenl and maintenance of the premises.
However, we do not Leel that that has been the case in the past with
management as no one has contacted uur lawyer personally since December.
We hope that this lack of communication will be remedied shortly.
r
letLtGL2 /L'Y1h tr7/A:—
Sincerely,
cc; Dean Oakes Housing
Hawkeye Property Management Tenants
Mrs. E.
Inspectors' Office
United for Action
Scott
3/7/71 • •
LIST OF ADDITIONAL REPAIRS NEEDED
Apt. 4 - Bath tub needs psulking. Fire extinguisher has expired.
64A. doesnt work.
Apt. 2 - Stove/refrigerator unit (General Chef L -K) needs replacing.
Present unit is old, the stove door does not close, and
the refrigerator door needs insulating repaired.
Apt. 7 - New kitchen floor needed.
Apt. 5 - The living room floor has weakened noticeably in several
areas. There are several large cracks in the linoleum.
Apt. 3 - This apt. has never been sprayed since November.
Bathroom needs replastering. The light above the
refrigerator goes on when the bathroom light is
switched on and vice versa (these lights are in two
separate rooms). One of the south windows has a
broken cord so that the window cannot be opened
now. Supposedly this window was worked on.
Apt. 8 - See inspectors' list. Also, living room/bedroom ceiling
hole repaired with unmatched tiles. Remainder of ceiling
is water -damaged and buckled (as is the bathroom ceiling).
Mr. Terry has agreed to fix the former and a commitment
on when is needed. The bathroom ceiling has not been
discussed previously.
Apt. 21- All windows, especially the south ones, need caulking
very badly. The heat doesn't go on during the night.
Apt. 20- Fix gap in upper window on east wall. New bathroom
floor needed. Leaky toilet. Pipe needs checking in
bathroom as toilet gets stopped up frequently.
Apt. 23- Kitchen faucet is leaking.
Apt. 28- Radiator needs checking. Pipes clank very much when
heat is on.
Apt. 36- Living room is impossible to open since it has been'fixed'.
Bath tub and bathroom sink faucets leaking again (They were
fixed only last week). Bedroom window does not stay open
of its own accord.
Apt. 38 - Separation between wall and baseboard in kitchen and
northeast corner of living room. Wood paneling above
sink is warped and needs replacing as does counter top.
Apt. 48 - Separation between wall and baseboard along east wall.
Apt. 44 - Newly installed toilet leaks.
Apt. 45 - There is still a large gap in one of the west windows
where the upper and lower windows meet, although the
window was supposedly repaired. Bedroom windows need
recaulking.
COMMENTS
Everyone who could be contacted agreed that they would like to
have the dumpster in the front yard moved to the alley next to
the 115 N. Dubuque building where the other dumpster is located.
In- the summer the flies and smell of garbage will be very
ncon-
bothersome for both tenants and passers-by. To prevent outo
s
venience to the elderly tenants a system will be worked out so
that they will not have to dump their garbage if they do not wish
to do so. We believe that this will be more convenient for the
garbage collectors also; they will only have to pick up garbage
at one location.
Fumigation seems to be the only answer to really eliminate the
problem of roaches. We will cooperate with the management in
order to accomplish this goal.
All tenants are very pleased with the quality of work and the
consideration of the workers who laid new floors in the apts.
This is not the case with the workers putting in new windows.
In several apts. there are still problems with windows that
were supposedly fixed.
We would appreciate it if, in the future when repairs are made,
tenants are contacted and consulted if something major is to be
done. Recently dark wall paneling was installed on one entire
wall of the bone -colored bedroom of apt. 30. The tenant wasn't
consulted as to whether he wanted such a drastic change in decor
or not.
• MM�7y1o.� • ///y� \ • CrvIC CENIER, 410E WASIONGION St
IOW CRY. IOWA 57740
� ]I9.]5I.I5OO
IOWA CRY• IOWA
1-4.4 02,
NOTICE OF DETERMINATION OF VIOLATION
November 22, 1976
Hawkeye Property Management
Bill Terry
5 Paul Helen Building
Iowa City, Iowa 52240
RE: Twenty-six multiple located at 130 E. Jefferson-?
Dear Sir:
On November 18, 1976 the property at 130 E. Jefferson
was inspected by Charles Calef and Pamela Barnes of
the Department of Community Development, as the result
of a complaint call.
Upon inspection the following violations were found:
1. Chapter 9.30.8.E provides for the owner of a dwelling
where infestation exists in two (2) or more dwelling units
or in the shared or public parts of the dwelling, extermination
thereof shall be the responsibility of the owner.
Cockroaches were seen through out the building. They were
observed in apartments; 7, 27, 30, 31, 36, 41, 43, and 44.
Roaches were mainly found in kitchen and bath areas.
The third floor garbage collection room was infested with
roaches.
This cockroach infestation must be eliminated for health
reasons.
2. Chapter 9.30.6.A provides for every foundation, roof,
floor, wall, ceiling, stair step, and every window, door, and
other aperture covering shall be reasonably weather -tight,
rodent proof, sound, of safe construction, and shall be maintained
in good condition.
The following should be replaced or repaired:
Apartment 43 -Plaster in kitchen on wall has fallen away in area the
size of 16" square.
Apartment 27 -Ceiling tiles in bedroom and bathroom are loose and
some of them have fallen.
ry/130 E. ,7ef*son
Ceiling the in living room above entry should be resecured.
"""Ailing
in apartment 44 bedroom facing the east needs to
be reputtied.
Replace broken windows in:
Ya. a. Apartment 36 -kitchen pane
.,7b. Apartment 7 -bedroom window and living room, east window
pane.
Apartment 30 -East wall in bedroom is in need of scraping and
•painting.
3. Chapter 9.30.5.E provides for the proper installation and
maintenance of all electrical fixtures.
JRepair or replace light switch in apartment 36 bathroom,
because it shorts out.
VIn apartment 43 bathroom light switch needs a new toggle.'
Apartment 7, kitchen east wall outlet needs a cover plate.
4. Chapter 9.'30.5.E provides for every habitable room to
contain at least two (2) separate electric convenience outlets.
,./Apartment 33 --south bedroom and north room each need one
additional outlet.
5. Chapter 9.30.5.F "Every dwelling shall have heating
facilities which are properly installed, are maintained in
safe and good working condition, and are capable of safely
and adequately heating all habitable rooms."
-/Apartment 43 -valve in bedroom heat register does not work.
Apartment 27 -heat register leaks water.
You are hereby ordered to remedy these violations by February
18, 1977. A reinspection of the property will be conducted at
that time to ensure code compliance.
Should you wish to contest any of these orders, your written
petition requesting a Hearing before the Housing Appeals Board
must be received by this office within ten days of service of
this notice. Your petition for hearing must briefly state the
grounds for your appeal. If you have any questions; please feel
free to call Housing Inspection at 354-1800 Ext. 323 or 324.
Thank you for your cooperation.
Sincerely,
Pamela S. Barnes
Housing Inspector
cc: Dean Oakes, R. R. #2, Iowa City, Iowa
Donald R. Peters, 1223 Country Club Drive, Spencer, Iowa.
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February 23, 1977
NOTICE OF DETERMINATION OF VIOLATION
Crest Townhouse, Inc.
Frank B. Nelson
Professional Building
Spencer, Iowa 51301
RE: Structure located at 130 E. Jefferson, containing twenty-six
living units.
Dear Mr. Nelson,
On February 18, 1977, Housing Inspectors Burke and Calef of the
Department of Community Development, and Property Manager
Bill Terry inspected the property at 130 E. Jeffersoneknown
as the Berkley Apartments.
This letter also includes a review of all inspections performed
during the past year of 1976. Where deficiencies still exist
from past letters a notation will so indicate, "previous letter
and date".
Chapter 9.30.6.A provides for every foundation, roof, floor, wall,
ceiling, stair step, and every window, door, and other aperture
covering shall be reasonably weather -tight, rodent proof, sound,
of safe construction, and shall be maintained in good condition.
Apartment 43 -✓Kitchen floor covering needs to be repaired or replaced.
nAy.t� Bath, needs to be scraped and painter where paint is
peeling and cracking.
l.rl4:i
✓Apartment 47 - Living room/bedroom - color around pipe on east wall
at the ceiling needs to be replaced or repaired.
Apartment 48 - Living room/bedroom - paint/paper cracking and or
peeling north wall.
w a �Grx4�-ee^.. r .�'ia+^�•1 c w�-o.vl 4
Apartment 420 - south room ceiling and south wall have several
structural cracks, this appears to be from settling
of the structure.
Apartment r21 - Bath, repair ceiling plaster and paint.
Apartment 423 - Kitchen, paint/paper is peeling, scrape and repaint
where necessary. Bath, wall on south side and ceiling
need repaired and painted where necessary.
Large cracks in ceilings and walls are due to structure
page 2 •
Nelson/130 E. Jef rson
Apartment #25JJ�Itchen, replace three panes of proken glass.
Living room, replace broken window pane.
North Room, repair door latching and locking
device. Repair cracks and paint where necessary.
Apartment #27 \'Replace broken window on west wall.
Apartment #29 - South room, large cracks are do to structure settling
and need repair.
Living room, windows on west wall need repaired.
Apartment #30 - South room, repair window on south wall.
Bath, south wall scrape and paint where necessary.
Large cracks are do to structure settling and need
repair.
Apartment #91Main room, molding at ceiling is coming loose and
needs to be renailed.
Apartment 195 - Throughout apartment,large structural cracks and
some sof plaster do to settling must be repaired.
Kitchen, floor covering needs to be replaced, aVso
replace counter top.
Apartment #96 Living room, windows need to be reputtied.
Apartment #98 - Living/bedroom, north wall repair wall under window
Land repair sash. IXa'E-wall, replace missing mounting
on windows and reputty glass.
Kitchen, repair hole where sink drain pipe goes through
wall.
/ Ball, 9th floor - North end, repair window frame and sill so windows
will fit properly.
Hall, 3rd floor - North end, repair window frame and window sash so
window will fit properly.
East wall, renail along ceiling and plaster or
calk crack along baseboard.
Hall, 2nd floor - North end, repair window frame and sash so window
will fit properly.
East wall, plaster or calk crack along baseboard.
Chapter 9.30.5.0 provides for bathrooms without a window or skylight
to be equipped with a ventilating system approved by the Housing
Inspector.
Apartment #3 - Bath, a vent fan or some mechanical ventilating device
must be installed.
Apartment #7 - Bath, a vent fan or some mechanical ventilating device
must be installed.
/).J •�� .. fjAY� � •'!te ae.wf ry YnKe� • v�-n.L�.Pa.�:�++� de.{•< -<x.
Apartment #21 - Bath, a vent fan or some mechanical ventilating device
page 3 Ank
Nelson/130 E. Jeforson S
Apartment 424 - Bath, a vent fan or some mechanical ventilating
device must be installed.
Apartment #36 - Bath, a vent fan or some mechanical ventilating
device must be installed.
Apartment #40 - Bath, a vent fan or some mechanical ventilating
device must be installed.
✓Apartment #44 - Bath, Install a vent fan or some other mechanical
ventilating device.
Apartment #45 - Bath, install a vent fan or some other mechanical
ventilating device.
Apartment #46 - Bath, a vent fan or some mechanical ventilating device
must be installed.
Chapter 9.30.5.B "Every habitable room shall have at least one window
or skylight which can easily be opened, or such other device as
will adequately ventilate the room."
The following apartments need a vent fan or some mechanical ventilating
device installed in kitchen:
Apartment #3
Apartment #24
Apartment #40
Chapter 9.30.5.E. provides for the proper installation and maintenance
of all electrical fixtures.
') Apartment #3 - Kitchen, temporary wire used in kitchen must be enclosed I
to avoid possible electrical shock. ("noted in previous
1% y ✓� letter, November 12, 1976")
Apartment #21 - Bath, secure light fixture to ceiling. Some temporary
electrical wire was noticed during inspection.
("noted in previous letter November 12, 1976")
Apartment 923 - /Closet, electrical fixture needs to be properly
ecured.
Bath replace coverplate.
Apartment 148 - mall oom with refrigerator, secure light fixture to
wal
ing room/bedroom, remove all temporary electrical
wire. (drop cords)
Chapter 9.30.6.F "Every supplied facility, piece of equipment or
utility shall be constructed or installed that it will function
safely and effectively, and shall be maintained in satisfactory
working condition."
:page 4
Nelson/130 E. Jef*son
Apartment #3 - Kitchen stove bottom door is broken and must be
repaired.
Chapter 9.30.4.I provides for all plumbing, plumbing fixtures, and
appurtenances thereof to be maintained in good working condition
and reasonable repair by the owner.
Apartment #7 - Bath, faucets for the bathtub are leaking.
in Tru. r
Apartment 940 - Bath, fill valve?will not completely shut off
causing a water leak and needs repaired.
Chapter 9.30.6.E provides for every bathroom floor surface to be
constructed and maintained as to be impervious to water and such
floor be covered with a surface that is easily cleaned and kept
in a sanitary condition.
✓Apartment #8 - Bath, floor covering needs to be repaired or replaced.
Apartment #23 - Bath, floor covering needs to be repaired or replaced.
Chapter 9.30.4.G "Every water supply inlet shall be located above
the flood level of any installed sink, lavatory, bathtub or auto-
matic washing machine and similar water using fixtures, or above
some unobstructible overflow thereof; and there shall be no sub-
merged inlets, except submerged inlets installed with a vacuum
breaker of a type approved by the Housing Inspector."
l:ria T.:h
The following apartments need the.%,fixtures replaced:
Apartment #23
Apartment #25
Apartment #27
Apartment #43
Apartment #45
Chapter 9.30.5.E provides for every habitable room to contain at
least two separate electric convenience outlets.
The following apartments need one additional outlet:
J Apartment #37, south room
VApartment #40, living room
7partment #41, Bedroom
Apartment #46, Living room and bedroom
Chapter 9.30.9.) Fire Extinguishers adequate for type of occupancy
must be provided and maintained in operating condition at all times.
Apartment #38, needs to have a fire extinguisher installed in the
kitchen area.
page 5
-Nelson/130 E. Jefferson
Chapter 9.30.4.R provides for every dwelling unit and rooming unit
to have access to two independent, unobstructed means of egress
remote from each other.
Hall, fourth floor - south end, replace window to remove obstruction
of egress.
Cockroaches were observed in some living areas, however, the sightings
were not as frequent as in the past. This office recommends a
continued extermination program. From our inspection on November
22, 1976 until now your current program has been the
control of insects.
You are hereby ordered to remedy these violations by June 20, 1977.
A reinspection of the property will be conducted at that time to
ensure code compliance.
Should you wish to contest any of these orders, your written petition
requesting a Hearing before the Housing Appeals Board must be
received by this office within ten days of service of this notice.
Your petition for hearing must briefly state the grounds for
your appeal. If you have any questions, please call Housing
Inspection at 354-1800, Ext. 323 or 324.
Thank you for your cooperation.
Sincerely,
Charles W. Calef 6,tZ,
Housing Inspector
CWC;ak
cc: Marion Neely, 510 Iowa State Bank
Hawkeye Property Management, Paul -Helen Building
u
Crest Town Mouse, Inc.
Box 93 Spencer, Iowa 51301
Phone 712.262.1150
March 21, 1977
Ms. Barbara Yates
Attorney at Law
212 Dey Building
Iowa City, Iowa 52290
Dear Ms. Yates:
This will acknowledge receipt of the March 7, 1977, letter
directed to us by the tenants of the Burkley Apartments. With
respect to the items referred to in the letter, and with respect
to the general complaints of the tenants, you should be advised
that we have been working with the City of Iowa City Housing
Inspection Section. Any of the complaints contained in their
recent inspection report have been completed and others are in
the process of scheduling.
With respect to the general comments contained in your
letter of March 7, 1977, the following comments are in order:
(1) The building does contain a fire alarm system
which has been installed and in effect for some
period of time. If you will look in the hallways,
you will discover the alarm mechanisms.
(2) The fire escapes have been inspected by the Fire
Marshall's Office and persons from the city Housing
Department and have been deemed to be satisfactory.
—� Their inspection, which took place last fall, included
climbing entirely to the top of the building on both
fire escapes, together with complete inspection.
(3) With respect to maintenance of the halls, lobby and
stairways, obviously, in an older building it is
difficult to maintain complete cleanliness. We will
continue to attempt to maintain these areas in
an above-average manner.
Ms. Barbara Yates -2- March 21, 1977
(4) With respect to the
items
bunder
adviseyour
t"extensive
hat we e
repair" category, please
obtaining estimates on some of these matters and
will proceed as realistically as possible to
complete necessary major repair work.
We do appreciate the concern being expressed by the tenants,
and hope in the future we can work more closely with them toward
a general upgrading of the living conditions in the building.
V truly your ,
g elson
FBN:CJH
cc: Mr. Marion Neely
Room 510
102 South Clinton Street
Iowa City, Iowa 52240
Mr. Dean G. Oakes
Box 1456
Iowa City, Iowa 52240
Mr. Don R. Peters
Peters -Reimers Insurors, Inc.
800 Grand Avenue
Spencer, Iowa 51301
Hawkeye Property Management
No. 5 Paul and Helen Building
Iowa City, Iowa 52240
" Ilk;
• • J
POINTS COVERED IN MEETING WITH TERRYS 4/28/77
1. Alarm system - System in the building is 2 years old. It passes
insurance and fire dept. minimum standards. It's a smokedetection
system in the basement. The alarm at th'e top of 2nd floor is the
only bell in the system. The owners are waiting for another insurance
'co. report on the system -- Terry has suggested that battery operated`
.} •o�, r alarms be.installed (3 each) on 'at least 3rd and 4th floors.
2. Fire escapes - All are said to meet code; last inspection of the
escapes -was in the fall (7) It is possible that angle irons
will be installed on the back of the.fir'e ladder at the south
end of the building. 'Notices.will be posted .as to'which exits
each apt. should use in case of fire. Also, notice will b
as to how the alarm system works and how to operate the extinguishers
in the halls. It was also suggested that people might consider buying"
:a sturdy rope -and keep it coiled and tied to a radiator to offer anoth.e
method of escape in case of fire.
One other thing we might consider is appointing one person per floor
responsible for knowing especially well what to do in case of 'a fire
u and this person would explain this to new tenants when"they moved in.
The Fire Dept. has info regarding fire prevention and what to do in
case of a fire. The info will be run off and distributed to all tenant
3. Maior,repairs - They're getting bide from contractors to do external
painting, caulking the windows, fixing the eaves. The last two items
will have priority and hopefully these will get done this summer.
..Our requests regarding the wiring were not received well. Terry.said
that open fusing doesn't have to be enclosed if the basement is kept
locked. HA said that as long as air conditioners are not used the
wiring is sufficient for every apt. 'Rewiring would be too expensive
and the building would be torn down if that were the'ease.
_ 4. Other repairs - We'd like to make a list of apts. that have big cracks
around baseboards (greater than 1/4"). Up to 1/4" (maximum) cracks
can be handled with caulking. Wood will be put in to fill up the
holes and this should cbt down on the bug problem further.
• - 2 •
i
./
5;
Painting - There is the POSSIBILITY (at this point still only a
possibility) that those people who wish to do the caulking and
patch plastering in their apts. will get paid for doing the work.
People -who have plastering done (or who do'it themselves) will be
provided with paint.(only bone white) to do their apts. The older
people in the bldg. will have their apts. painted by someone hired
by the owners. If you believe your apt. warrants repainting, talk
to Mrs. Scott.
'x
6.
Leases and rent increases - Starting thi's fall (August) everyone
will have to sign a lease. It is a new lease, different from the
'
type we signed last Aug. Rent increases go into effect at the
•
time.of the new lease -- 10-15%. These increases may not be as
high far the people who have lived in the building for many years.
Mr. Terry stressed that the increase has nothing to do with the
fact that we have organized a tenants union. He cited rising
costs in labor, utilities, etc. for the raise.
7.
Maintenance - The discussion got a bit heated here, but basically ,
_
all was said was that the building is old and that they'll work on
making sure needed repairs -are done more rapidly,.
'
C�..b�l U1?M� "S`(�SV`'�. QD x I /►riD.. '-.. 0.- (v ?0
4
-..
0 0
COMMENTS REGARDING
PROPOSED TENANT -LANDLORD LEGISLATION
IOWA CITY, IOWA
SEPTEMBER 13, 1977 by W. A. Fotsch, CPM
Madam Mayor and Councilpersons:
The real impact that the proposed tenant -landlord legislation
will have with reference to forcing higher and higher rents in the
Iowa City area; its impact on the City in the form of staff expansion,
increased budgets and potentially devastating liability claims, has
been discussed time and time again. I don't wish to take too much
of your valuable time with repetition, but I do want to emphasize
that those statements and claims are well founded and accurate and
should be basis enough for all seven council members and people of
Iowa City to overwhelmingly reject the proposed tenant -landlord
ordinance.
My purpose tonight is to supply you with an additional historical
perspective and some raw data concerning rental properties. The
proponents of this ordinance cannot point to one single city in
the entire United States in which the tenants affected, or the City
as a whole, or the city administration, is happy with tenant -landlord
legislation -- the evidence simply does not exist which would support
the adoption of this kind of ordinance. In fact, quite to the contrary.
Legislation similar to this which has been proposed has been the
root cause for mass deterioration of housing and indeed has precipitated
the deterioration of entire sections of cities. New York City is a
prime example. Officials there now reluctantly admit that such
legislation is costing the City of New York upwards to 30,000 dwelling
units annually. Of course this has had a measurable impact on the
J
City's financial outlook because it represents 502 million dollars
of delinquent real estate taxes that had to be written off. This
situation can be documented in city after city that has adopted
similar legislation. If you should desire, I have copies of newspaper
articles and editorials that I can share with you which clearly point
out the results that lie ahead for Iowa City if the people go for
this legislation. Housing imbalance, reduction in quantity, quality
deterioration, friction and a combination of social and economic ills
will be the direct result of such counter-productive legislation.
I encourage everyone here to do their homework and simply find
out what other cities have experienced from legislation involving
tenant -landlord relations. There is overwhelming evidence that
hindsight shows us this type of legislation is an extreme handicap
on the very people it is supposedly designed to help. In fact, the
movement now is to undo legislation of this type, the state of Florida,
Boston, Massachusetts, and Montgomery County, Maryland, as a few
examples.
I am a tenant and also an owner and my cry is the same as the
vast majority of other tenants. We do not want legislation! We want
decent housing that fit our needs, that we can afford. This is
absolutely what non -owners or tenants want and believe it or not,
owners want the same thing.
We are all kidding each other if we think for a minute that
this proposed legislation can provide the answer to our wants,
sufficient housing at affordable prices.
Attached to this presentation is a copy of a report that I have
prepared from the 1977 Experience Exchange publication of the Institute
of Real Estate Management.
0
• -3-
The totals of nearly 50% for expenses before mortgage payments are
made, show factually and accurately that the Iowa net income and
expense situation is no different than that of other parts of the
U.S. What has happened elsewhere as the result of such legislation
will happen here.
These figures also add credibility to the argument that the
most immediate result of such legislation will be higher rents and
deterioration of quality in housing.
Lett have foresight and using 20-20 hindsight vision I
encourage you and the people of Iowa City to soundly reject the
proposed tenant -landlord ordinance.
Thank you.
AVERAGE INCOME AND OPERATING COSTS
GARDEN TYPE APARTMENTS - UNFURNISHED
DOLLARS PER SQ. FT. RENTABLE SPACE/YEAR
1976
% OF % OF
ACTUAL (MIDWEST) ACTUAL
USA INCOME REGION 07 INCOME
OF
ACTUAL
IOWA INCOME
Grose Income Possible
2.78
100
2.79
100
3.77
100
Actual Income Collected
2.67
96.0
2.67
95.7
3.76
99.7
Payroll
.20
7.5
.20
7.5
.19
5.1
Supplies
.02
0.7
.02
0.7
.05
1.3
Paint 6 Decorating
.06
2.2
.06
2.2
.05
1.3
Maintenance
.16
6.0
.16
6.0
.17
4.5
Services
.04
1.5
.04
1.5
.05
1.3
Miscellaneous
.03
1.1
.02
.7
.02
.5
Electric
14
5.2
.10
3.8
.10
2.7
Water
.07
2.6
.06
2.2
.09
2.4
Gas
.05
1.9
.03
1.1
.03
.8
Heat
.13
4.9
.08
3.0
.15
4.0
Management
.15
5.6
.15
5.6
.21
5.6
Other Administrative
.06
2.2
.07
2.6
.05
1.3
Insurance
.05
1.9
.06
2.2
.07
1.9
Real Estate Taxes
.33
12.4
.36
13.5
.70
18.6
Other Taxes
.51
.4
O1
0.4
Total Expenses
1.40
52.4
1.35
50.6
1.86
49.5
Net Operating Income
1.27
47.6
1.32
49.4
1.90
50.5
Before Debt Service
Note that even though average Iowa rental income is over $1.00 per sq.ft. higher than the
Midwest and USA averages that the "bottom line" or (What is left after the bills are paid
before mortgage payments) is nearly the same percentage wise for all areas compared. Your
attention is directed to find out why! After you compare all expenses, that have some
variance, you then see the major reason - Real Estate Taxes. The Real Estate Tax for Iowa
is over twice as much as the USA average and nearly double the Midwest Region.
For your additional information debt service is running from 45-60% of income. So
you can see with expenses averaging 50% of income many properties are faced with
a negative cash flow.
Prepared for Iowa Chapter #63 of IREM by W. A. Fotsch, CPM from Income 6
Expense Analysis of the Institute of Real Estate Management. This report may
not be used in any way without permission.
•
613 2nd Avenue S. E.
Cedar Rapids, Is 52401
Due to past experiences within at least a year's time - equal to.
the duration of a lease contract - we the tenants of Town and Campus
Apartments request an answer to our inquiry. The general state of our
living conditions has become slipshod. K.ny feelings of frustration and
anger have au -faced among the tenants concerning neglect of the dwellings
and grounds upkeep. Promises had been expressed to renters who -signed
new lenses that the shabby affair of this complex would be improved,
while long-standing renters are becoming impatient with the constant
procrastination of repairs; in total there's an agreed dissatisfaction
with the following points. We have a new manager who is eager to meet
the challenge of these compla_nts, therefore it's fair that you as.owners
also realize these conditions;
1. The laundromat n,rvices have been reduced :to a point where only three
washing machines (out of 9 originally) are operable. Being a 100 unit
complex, there's been quite a rush on laundry room priveleges. In the
past, manyclothes have been ruined due to grease or inconsistency on
part of the machines. It's been discussed that a money -changing
machine would also aid those of us who find the dryers consuming all
of our dimes.
Essentially, the major handicap here is for tenants who rely on the
laundry rooms at the complex because they lack transportation to go
elsewhere. These machines are a guaranteed service in our lease and
yet since June the requisition for replacements has not been fulfilled.
This seems to deserve a valid explanation. Our present manager Is
knowledgable about laundromato and has termed these machines as
hopelessly irrepairable. Every day of delay is a great inconvenience
for mothers and those who have tight schedules. A months' time for
approval is outrageoun, considering the cost of the appliances
comparable to this property's income.
2. Secondly, the sidewalks have become a hazard, especially to.the
elderly and children who constitute a major population of the complex.
We are aware that estimates have been taken for blacktopping the
walkways. Hopefully this will be done by next winter. L:,st year a
handshovel had to be used for snow removal: Sometimes days would pass
before the walks were cleared if at all. Everyone must wade through
large puddles that even reach some doorways.
3. Thirdly, the stairways are i,tructurally absurd when it comes to safety.
It would be in order to consider railing or boarding over patches of
open space that exist outside the doorways; they are large enough for
a small child to fall through to the concrete below, in fact this has
happened. A clause in our lease forbids children to play on the
stairways yet what are they to do if they live on the second floor?
Just walking to ground level causes many parents anxiety. Also, the
children are inclined to play on the stairways from lack of a play
area. The existing "playground" consists of a splintered sandl,o'....
The manager is malting an effort to set up a swingset, a small scale
one with capacity for a few children at a time. This is a nice gesture
but even with supervision it can't reasonably withstand use from the
approximately dozen preschool children who live here. A chinning bar,
slide, and basketball hoops would be inexpensive, safer, and more in
demand..
4. The doorways are a violation of Iowa City's housing code in soae
- Irtment9. Without weatherstripping on the front doors, rain and
cold coma come in, heat and air conditioning goes out and ou;• utility bills
go skyrocketing. The patio door casings are drafty and the non -thermal
glass causes alot of energy waste. Screens on the entrance doors
would provide ventilation when air conditioners aren't in use (or not
working!), would save money on utilities, and help control insects.
Weather stripping and screen doors at the front entrances are cheap,
and practical, but time consuming for our manager and one maintanence
man. Could help be hired for so simple a task before winter sets in4
S. Finally, "minor" problems have persisted for unreasonable lengths of
time. Hasty cover-up of problems such as a leaking ceiling, furnace
and air conditioning malfunctions, dripping faucets, and louse window
screens, and poor outside lighting result in complaints having to be
repeated. Previous managers either incompetent or discouraged by the
great work load were partially to blame. Yet we've come to believe
that the slow response from funding authorities is also involved.
There has been a speed-up of improvement since gay became Town and
Campus Apts. manager. E.g. the filling of'chuckholes in the driveway
and new c�,'- eting in a few apartments are greatly appreciated. Yet
these seem to be only token actions when persons who have lived here
over a year are still waiting for rotting carpet to be replaced,
leaks to be stopped and incomplete paint jobs to be finished.
Since our rents are now increased $20 across the board, we expect
clean living quarters in return. Tovm and Campus tenants strongly agree
that as businessmen of integrity proper investment in maintenance of your
property is an expected responsibility. Communication from you, the owners
to the management and to us the renters who substantiate your investment,
would be appreciated. In closing, we find our manager to be a welcome
sign of encouragement. We now look forward to hearing from you.
cc Bob Johnson
Ray Potrata
i
1
t. -r.
Sept. 13, 1977
Statement by TL■rgeret Ellie
1100 Arthur 8troet
This past summer tenants at Town and Campun apartments have bean'concerned
enough about the deterioration of their housing, enough to talk with the landlord
and his agents to try to solva our problems. Since our lease will not allow ten-
ants to do any upkeep or repair without consent of the landlord we've had to rely
on promises for hope of better conditions. We're not looking for luxurious ser-
vice, we're trying to untangle the red tape that keeps the tenants under:tbe
thumb, unable to live respectably and as cleanly as the City housing code says
we must.
The present city code 1.9 fairly detailed in providing for housing welfare, but
its enforcement is too weak. After all, the lease we signed protects the landlord
from that partrLs breach of contract, failure to maintain playground equipment or
the laundry, or future disrepair of premises after the lease is signed..
Section 9. Such heating, air conditioning and/or water heating equipment,
water valves, electrical switches, circuit breakers and fuse bores as Land-
lord may permit Tenant to use or benek1t from are furnished gratuitomtously a
and not in consideration of any rent due hereunder, and shall be furnished only
so long as Tenant shall not be in default under this lease. ...Thia leasee shall
not be effected (sic) and there will be no diminution or abatement of rent
and no'aonstiuctive eviction shall be claimed or,allowed because of the inter-
ruption or,curtailment of any service (including but not limited to heating
or air conditioning) or utilities or the failure to make repairs 'or any in-
convenience -.or discomfort arising from repairs or improvemento medo in the
premises or any other part of the apartment building or common aides or
facilities or arising out of strikes, labor troubles, accident,' gaverni!eutal
requirements, or any other similar or dissimilar cause...
If tenants attempt.',to have their heater repaired thio jesse`Bays this is `illegal
(Section 7)—the landloid's personal contractors must: be'Ogutacted under written
permission of the landlord.
LasL w1iter our family, including a 2 -weak -old infant,emiured 3 days of:0-
degras weather while the heater was being repaired and then replaced.. 'The break-
down was caused by the neglect,of routine maintainancei including replacement of
the filter. We eventually moved to relatives wit"t;abatiment of ratV tbat
month (the lease forbids abatement as well).
A neighbor's 18 -month-old fell through a screen window on the segpnd floor
and suffered a fractured skull. She wag hesitant to complain, she feazed losing
her Section -8 (subsidized housing).stinding'if sh'e,diired try to sue (cause trouble).
a.
Besides the lease apparently protects the landlord fr6a liability (Section 16).
After discussing with our landlord our diseatisfsction with the premises
there was nothing to do except wait two more months to at least see our lsutdro-
I '.
....... . .. 11 i, -, , - Ij�, - V 4 . . - - - ,
T,
mate operable again.
This lstter'is not intended to "da=ga the reputation of Landlord or Landlord's'
apartment building or buildingi" (Leans, Saction:10). We only.want good business
ethics, includivii'affiaiency and fairmcon, betwean landlord and. taiiizt.
The following notice was sent to the management last June..
Now it Is the ob-
ligation of the landlord to sea that; repairs are m kde. An increase in'rent has been.
in effect for about 5 months now and ranters .1 eel' that reasonabU wait"
periods
I
Alex J. Lubet
407 N. Dubuque N3
Iowa City
STATEMENT TO THE TOWN COUNCIL OF IOWA CITY FOR ITS MEETING OF TUESDAY 9/13/77
ON BEHALF OF THE PROPOSED TENANT -LANDLORD ORDINANCE
This statement deals with legal remedies for operator violations of
rental agreements as provided for in the proposed Tenant -Landlord Ordinance.
In addition, the statement proposes that, of the proposed remedies, which fall
into two categories, tenant -initiated and city or housing -inspector -initiated,
the tenant -initiated remedies require less time and are procedurally simpler and
thus, more attractive to the tenant whose rental agreement has been violated than
city -initiated remedies. One result of this preference for tenant -initiated
remedies will be a lower expenditure for the city than has been estimated in its
suggested increases in the 1978 budget for housing inspection, since portions
of that increased budget are allotted to expenses anticipated to be incurred in
city -initiated remedies to operator violations of rental agreements, which we
contend will occur with less freeuency than tenant remedies, which will impose
little or no expense upon the city. The economics of tenant vs. city -initiated
remedies of operator violations of rental agreements and of the Tenant -Landlord
Ordinance in general will be covered in detail in a subsuquent statement.
9.31.6 --Tenant Remedies --there are three remedies available to the tenant for
operator violations of rental agreements--terminntion of the rental agreement,
tenant -initiated repair with appropriate rent deduction, and abatement of rent.
They are covered respectively in subsections 6A, 6B, and 6C of Chapter 9.31.
Termination --If the operator fails to comply with the rental agreement or fails
to maintain the premises or essential services, the tenant may notify, the operator,
in writing, of the breach and the rental agreement will terminate 30 days after
receipt of notification if the breach is not remedied in lh days. This is a
defense necessary to the tenant's rights in the rental agreement as well as her/his
health, comfort, and safety. Of tenant remedies, this is least attractive, as
it renuires that the tenant find better, affordable accomodations within 30 days --
difficult or near impossible, as anyone who has been a renter for any length of
time in Iowa City will ascertain,
B. Repair and Deduct --If the operator fails to make any essential repair
whose reasonable cost is less than $1$0, the tenant may notify the operator of
his intention to correct the condition at the operator's expense. If the operator
fails to make the repair or mike an agreement with the tenant within lit days, the
tenant may arrange for repairs to be made by a professional and submit the receipt
to the operator, deducting the cost of the repair from her/his rent. The tenant
may do this up to h times in a twelve month period. This is the fastest and most
straightforward way for the tenant to obtain repairs --therefore the moat attractive
to the tenant, as well as the simplest and least expensive for t e operator, who
will no doubt make the repairs his own resonsibility, therefore securing repair
services at the least expense to him and maintaining the value of her/his property.
C. Rent Abatement --If the operator fails to maintain the premises such that
the tenant's health, safety, or welfare is endangered or the premises are•damnged
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emfficiently to impair enjoyment of the dwelling unit, the tenant may continue
occupancy and abate part of the rent in proportion to the diminution of value
of the rental unit or abate full rent, obtain suitable temporary acconodations
until the breach is remedied, and recover the difference between the temporary
housing, and rent from the onerator. If the breach is not remedied in 14 days, the
tenant may terminate the rental agreement And rrcober the difference between the
cost of new housing and the periodic rent from the operator. This remedy offors
the tenant the opportunity to bring economic pre.,sure upon the operator to repair
severe deficiencies in the maintenance of the premises, pressure which will
insure rapid restoration of adeouate living conditions. In addition, it insures
that the tenant will not have to suffer either substa.ndard living. conditions or
bear the expense of temporary housing due to conditions she/he has not precipitated.
The tenant may achieve essentially the same effect As city -initiated rent
withholding, but faster and without renuiring the services of the housing inspector.
Sections E, F, and G, clarify the tenant's obligations in seeking remedies and
tenant protection from unlawful retaliation by the operator. They are self-evident
and need no further clarification here.
Section 9.31.7 --Duties of the Housing Inspector--Procedure--This section
essentially conforms to the current practice of the Iowa City Housing Inspector,
with notable exceptions. The Tenant -Landlord Ordinance limits the time allotted
for the completion of the schedule of corrections of violations to two months,
with extensions granted only in exceptional circumstances. Currently, the
granting of extensions is standard practice and the schedule of corrections is
limited by law to six months. The Tenant -Landlord Ordinance requires that each
affected tenant reciive a copy of the notice of violations. This is essential
so that tenants may initiate remedies. The Tenant -Landlord Ordinance requires
that failure to correct violations by the specified date shall require that the
Housing Inspector certify the dwelling, for rent withholding.
The expenses incurred by the city in the administration of rent withholding
will be held down by economics --no operator -can afford to allow her/his property
to fall into sufficient disrepair for sufficient time to face the monetary loss
incurred by rent withholding. Few tenants will allow their dwellings to fall
into sufficient disrepair to require rent withholding without first applying the
three tenant -initiated remedies provided in the Tenant -Landlord Ordinance.
Section 9.31.10 contains this direct quote from the 1919 State Housing,
Code 413.115; "the Housing. Inspector or any officer deaigsaW by the City for
this purpose shall Apply to the district court for an order authorizing, him/her
to execute and carry out the provisions of said notice." The quote is paraphrased
only in that the word "shall" has replaced the word "may" from the 1919 Code.
Where the 1919 Code calls only for "the abatement of the nuisance" (in this case,
any housing violation), the Tenant -Landlord Ordinance empowers the city to make
repairs, under receivership, at the operator's expense. rhis Allows the city
to prevent the loss of housing to disrepair --a necessity in a city with an acute
housing shortage. It is essential that the city have access to receivership as A
remedy to Municipal Code violations as a reserve economic pressure, one step
beyond rent withholding, which we have Already seen is an untenable economic option
for the operator. Objections to receivership on the grounds that it deprives the
operator of his property without due process are fnlse--an order for receivership
must he obtained from the district court --by due protean --and the order may be
appealed.
The tenant and city -initiated remedies provided in the Tennnt-Landlord
Ordinance will help maximize Iowa City's amount And quaity of rental housing
chiefly through tenant -landlord interaction, without extensive burden or expense
to the courts or the Housing Inspector.
n
Mark Dsathefragse enante United for A6$iai,
Statement to City Counoil\-September 13, 1977
Mr. Kuch6iake who is director of the Housing and
Inspection Services, has estimated the aoete of administering
the TenantAandlord Ordinance at approximately $74.000. Ws,
of ocurse, feel,, -that this expenditure would be well justified
but that theate is higher than the costs would actually
have to -be. j�
;There are two observations that moi" we would
initially like to make about this estimate. The first Is
that X74,600 is only about $5 per person in Iowa City, and
that this is a cheap price to pay for the benefits that
will accrue to Iowa City tenants. The second observation
is that Mrikluoharsak has not only said that he feels that
c:
the Ordinaiig� would be worth the $74,000 coat, but also
hat present a budget ---he is director of the
office, 'and,%aturally would present a budget that reflects
the very maximum possible cost of the administration.
Keeping these things in mind, there seem to be two
important questions to ask when looking at the breakdown
of this budget estimate. The first question Heals with
determining what is actually necessary. An important
thing to keep in mind is that It is not wise budgeting
policy to allocate money for staff, equipment, etc., until
it's been shown that they will be necessary. The second
question is, what part of the budget " estimates are
directly Attrjbutable to the Ordinance itself? Some of
the items in the budget are items that have been requested
in previous years by the Housing and Inspection Service.
We will divide the ordinance in the same way that Mr.
Kucharzak dide looking at the costs of the Rent withholding
program, the costs of the Receivership program- and the
General costs,
Mr, Kucharzak estimates the cost of Rent Withholding
at $32,000, including two more Housing Inspectors at
$130500 each and a half time clerk typist at $5.000,
W_ Iiww . .,. %i ems with these estimates.
First, the number of times the Rent Withholding
providion will be used is probably overestimated. The
reason is tyro -fold, On the one hand, Tenants will
be more likely to use the tenant remedies of repair and
deduct for minor violations and rent abatemen'; for major
violations. The reason is that these are the quickest
solutionsq and tenants will be informed of this fact
through mailings by the Citizens Housing Center, The
other factor is that landlords are not likely to 6hM
delay repairs long enough for rent withhilding to come
into effect* because he would thus be deprived of
income during the Rent Withhalding period. Thus, while
he will eventually have to pay for the repairs no lewger-
matter how long he waits (and they will probably become
more costly aver time), but he will also have to borrow
or otherwise raise funds to pay the monthly encumbrances
such as utilities, water, eta, It will thus be cheaper
overall for the landlord to make repairs before Rent
Withholding is iaplemented.
The second problem with the Pent Withholding estimate
is that, at most, only one extra Yousing Inspector should
be needed, not two as Mr. Kucharsak suggests. His report
says that there will probably be en initial rush of
complaints, levelling off after that at about 20-50
complaints per month due to the Ordinance. According to
Inspector Dave Malone, they should be done with the annual
systematic snapections in December, and thus would be able
to handle the initial rush of complaints after that. If
necessary, they could postpone the start of next year's
inspections until the spring as they did this year,
Besides, we_. --a alro would contend that it
is not at all wise budgeting to hire staff merely on the
basis of emergency needs. As far as the number of
complaints after that, computing Mr. Kucharsak°s statistics
out shows that only one additioTml inspector at most would
be needed. He says there will be an additional 20-50
eenH
complaints per month, and he has skated that an irRpector can
handle between 2.6 complaints per day. Using the averages
.f rig{^.+eai re 44rA tlot hor_A14ne U Cent-T4h1^r
per month at 4 complaints per day would be 9 days work,
Thust there obviously in not a need for 2 more inspaotors.
Csi-ieeesaeala#g.x-iw a4• One additional ingpectvr is
already authorised in thin year°s budget, and the approp-
riation of that authorization whoul.d most the additional
need due to the Ordinance. This would logically mean that
only a quarter -time clerk typist would be needed. From
all of this we conclude that -the Rent Withholding budget
estimate is high by about $16,000, and should only be
$16,000.
The next part of the budget estimate is an
additional construction specialist for the Receivership
program at $14,000. We don't feel that this will be a
necessary expenditure. The chances that the Reoeivership
program will actually ever be used are very slim --it is
a deterrent provision. It is very, doubtful that a
landlord would Mill delay repairs long enough to allow
the City to take over the dutyof repairs and rent
collection, At most, we are confident that there would
be no more than one or two test cases. And due to the
provisions of the ordinance and the length of appeals, it
would probably be at liset a full year from passage of
the Ordinance that Receivership would be used. In
talking to Mr. Kucharcak, Z loarned that the job of
the constauction specialist per case is approximately
20-30 hours. There would have to be 12 oases in a year just
to give him one month°s work, and of course, it is highly
unlikely that there would ever be even more than 2 or 3
cases. We don't feel that it would be wise to hire a
construction specialist at $14,000 for probably one or two
weeks work. The present construction specialist cools durely
handle this workload.
The last part of the budget estimate is $27,000 for
General Support Coneiderations, First of elle it weer
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that a lot of these eALsates items are items that have been
requested in the past year or two by the Housing and
Inspection Service, and are not costs directly attributable
fully to the Tenant/Landlord Ordinance. For example. an
automobile was requested lawt year, and may well be
needed by the Departuenti however, administration of the
Ordinance alone could not possibly justify it new car.
We also can't see why the handling of 2 or 3 complaints
per day could justify a $2,280 telephone. Also, the
request for $10,880 worth of office apace is not a direct
consequence of the ordinances as Mr. Kueharsak notes. the
Civic center is already crowded and new space would most
likely be needed anyway, I think the same analysis can be
applied to all of the other estimates, such as for
equipment, services and supplies. technical services, etc.
I think that a liberal estimate might be that at most
$10.00 to $159000 of the $27,000 for General Support
could be costs directly from this Ordinance.
To sum all of this up, we feel that the Report
estimates are too high by $16,00 for Rent Withholding,
$149000 for Receivership, and at least $129000 to $17.000
for General Support, for a total overestimation of
$42,000 to $479000. We can't see any way that the
administration of the Ordinance could cost the dity more
than $15.000 to $309000, And of course, this is not all
directly costs of the ordinance. For example, if an
additional Housing Inspector were hired and had 10 days
of work per month on the Ordinance comp]*Anta, that would
leave half of his time for other projects such as the annual
inspections, etc., which we believe would be beneficial
impsoveownts .
Mr. Kucharsak believes, as do we, that the benefits
of the Te mV% andlord Ordinance are well worth $74.000.
Surely We a bargain at $25.000 to $30,000.
k' ,
D
Donn Stanley, Tenants United for Action
Statement to Fi•ty Council, September 13, 1977
Thq provision that makes the entire ordinance enforceable is
the security of tenure section. If the tenants have security to
report code violations.to the landlords or housing inspector, then
these violations ,nan be reported and corrected.
No other ordinarc:� even the one proposed by the Iowa City
Housing Commission affords security to the tenant who complains
directly to the landlord. If the tenant can communicate directly
with the landlord without fear of retaliation, code violations
can be repaired in the shortest possible time and the city will
be involved in the smallest possible yay.
This provision also includes protections for tenants who
organize and sue to enforce their rights. The right to organize
is basic to enforcing all rights that we have. The right to sue
without retaliation is important as we saw in the Old Gold case
where the tenants were threatened with not having their leases
renewed if they took legal action to recover some of their rent
for being without heat during part of the winter.
V
J:ra riolnick, SZ:) :Lows P,vcnue 6
Comments on the prn;)osed .T.aadl.ord-Tan; at Ordirmncc
City Council Meeting 9/13/77
I would like to offer some of the reasons why I support the proposed Landlord-
Tehant Ordinance. One of my major concerns is the decline of Iowa City's older
neighborhoods. The typical pattern is for single family dwellings to be convert-
ed into multi -family rental dwellings. When these incom:. properties are not
maintained according to the City's Minimum Housing Code, they deteriorate. Their
value eventually declines until it is more profitable to tear down the existing
housing and replace it with new, higher density dwelling.>. Of course, senta will
be higher for such units.
Worse still is the destruction of housing for non-residential uses. When I
movedro my present apartment at 525 Iowa Avenue, the view from my front porch
was o" the beautiful Iowa Avenue L4evard, and a row of older homes across the
street. Today, much of that view is occupied by a large parking lot. Several
olda- homes have already been destroyed. A couple of them, unfortunately, had
already been allowed to deteriorate by failure to enforce the City's housing code.
Others were, it seemed to me, quite sound structures.
I believe that the City should do everything in its power to prevent the fur-
ther loss cf residential dwellings in neighborhoods .lila. mine. It would be a
crime against this coanunity to allow the three beautiful homes directly across
the street from we to be converted into laud fill. The landlord -Tenant Ordinance
will prevent this.
When higher density housing and commercial establishncmts move into a neighbor-
hood, more than homes are destroyed. Traffic and parking problems, noise and
pollution increase; yards and vagetati.on disappear. The Landlord -Tenant Ordinance
can also help to preserve the quality of life in older mnighborhoods.
By stabilizing housing, the Landlord -Tenant Ordinance will also benefit home-
c-oners in older neighborhoods. In a market where it is sometimes cheaper to let
a house deteriorate and replace it with newer units, speculation and construction
of higher density housing increases the assessed value anal property taxes on each
home in the neighborhood. In addition, remaining single family dwellings become
less attractive as family residences to potential buyers. A vicious cycle exi.ats,
in which more and more single family dwellings are likely to he bought as income
properties, allowed to deteriorets, and repl.nced with newer and more espenai.ve
housing.
Comments on the proposei Landlord Tenant Ordinance
page 2
Thus, in addition to its disruption of existing neighborhoods, the current
speculation forces now families to seek new and more expensive housing on the
edges of the city. This creates inflationary pressure for the Iowa City housing
market as a whole. Saving older houses will discourage speculation. It will
stabilize the market value of single family homes as single family homes. And
it krill slow down the yearly rate of increase in property taxes.
The loss of family housing is causing a steady decline of the school-age popu-
lation in the older part of the City. This has led to debate over the continued
use of Sabin, Central and Horace AEann schools. Meanwhile, there is a growing
demand for new schools in the suburbs. Solutions to this problem are difficult,
and may be costly. But a vigorous program of code enforcement, assisted by the
Landlord -Tenant Ordinance, can help mitigate the problem itself.
In short., ,ensuring effective code enforcement, the Landlord -Tenant Ordinance
will help to preserve older neighborhoods and thereby benefit all residents of
those neighborhoods, and homeowners throught the city, and can help avert a cri-
sis in our achool system.
However, the proposed ordAnance alone will not do the _job. In order to main-
tain our present neighborhoods, the City Council should continue to support a
strong Housing Rebabilitation program for low and moderate income homeowners in
older neighborhoods. The City sboul.d complete systematic inspection of all dwell-
ings in older neighborhoods --a program approved by the Committee on Community Needs
and the City Council. The Council should also consider more restrictive zoning
for near -downtown areas which still have a predominantly -residential character.
High density housing should be limited, as much as possible, to certain target
areas. It is only through a comprehensive package of measures that vie can both
provide the housing needed by our citizens and preserve the gtpy of life in our
older neighborhoods.
1.0
I would like at this timeOdto address myself to Section
lOs2.5 of the Tenant -Landlord Ordinance which concerns dis-
criminatory practices in houssHg. The section reads (read
part A, Section 1012.5).
Now, when the Human Realations Ordinance was passed in
March, it added to the list of Iowa City residents who are
protected in housing, the disabled and the aged. Yet the fact
remains that theee are still hundreds of people in this city
who have no legal recourse should a landlord decide that they
are "undesirables" and refuse to rent to them, or decide to
evict them. These people would be cowered under provisions fore
1) lawful occupation - This has special relevance for Iowa City
because of the large numbers of student renters. Some landlords
rent only to students, some only to non -students. We want to
equalize this, to ensure that people are not penalized by the
fact that they are or are not in school, but have an equal chance
in responding to an ad simply because they need a place to live.
2) marital status - Too often , single and unmarried people are
penalized in their search for decent and affordable housing by
ads which read "couples only", and by landlords who interject
personal beliefs about marriage and sexual mores into the
business of renting an apartment or house. is p ld
et3sare tqua y
3) families and families w/children, including single mothers
with children - These people often have the hardest time finding
housing for themselves and their children. Many families who rent
rather than buy housing are on public assistance programs, and
are forced to compete for housing with students who can double
up or eveh add a third person to help pay rents, which remain
high as a result. Many are single mothers who are consistently
faced with ads that read "no pets or children". This provision
and the provision on marital status would help to open up more
options andtensureequal housing to those whose lifestyles are
not necessarily in agreement with the personal beliefs or wishes
of many landlords.
4) affectional preference - This is one that the Council has been
through before, and a lot of misconceptions and untruths were
brought up about gay people and their lifestyles. As the law
stands now, a gay person can hold a job in *owa city, have a good
credit rating, and open a checking account, but if a prejudiced
landlord decides to deny access to housing, that person can't live
in Iowa City. The fact remains that gay people are vulnerable to
the personal attitudes and beliefs of landlords who can nic refuse
tp rent to them because of their sexuality. This provision in the
ordinance reduces the possibility of such discrimination. Yes,
such a law dQ ? matter in Iowa City because there is a large gay
population in this town. And no, such a law 4w will not cause
gays to feel any more free to be themselves in public - all of us
are aware of the distaste idW and hatred with which most heterosex-
uals would view us, and no law is going to change that overnight.
The inclusion of affectional preference in the T -L Ordinance does
not "sanction" homosexuality any more than
existing laws sanction being black or white or male or female. It
simply ackowledges the existence of prejudices and discrimina+ion
against gays in this country, and insures that no ones human rights
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are abridged because of it.
In considering these provisions, it should be noted that
they are aimed at the professional landlord, the person who
owns one or more 12-plexes or 8-plexes, who is in effect,
running a business. In this case, we are sayibg that discrimina-
tion has no place in such a business. On the other hand, we
are not attempting to impose hardships on those homeowners and
landlords who must live and share facilities with their renters,
and for this reason the following provision has been includedt
(read #B, letter D "Exceptions" ).
So you see, the Discriminatory Practice section of the T -L
a�i's 4$
Ordinance gZ==Wxs an invaluable amendment to the city's current
discrimination ordinance which still leaves so many citizens
in a vulnerable position when it comes to finding a decent place
to live. I urge you to strongly consider its merits when it comes
timeb to vote on this measure.
0 0
Jane Vanderbosch
326 Fairchild
Iowa City, Iowa
for The Protective
Association for Tenants
Presentation to the Iowa City City Council's Meeting of Tuesday September 13, 1977
In Support of the Proposed Tenant -Landlord Ordinance
The Protective Association for Tenants is present this evening to provide
documentation in support of the proposed Tenant -Landlord Ordinance. We shall address
three aspects of the housing situation in Iowa City which directly pertain to the
dialogue surrounding passage of the ordinance. These aspects are: Types of problems
which tenants encounter in housing, some of the underlying causes of these complaints,
and existing remedies for tenant complaints along with the inadequacy of these remedies.
Our office deals with many types of tenant complaints. We feel that four broad
categories of complaint which come into our office would be affected by the proposed
ordinance: Harrassment of tenant by the landlord or landlord's agent, eviction of
tenants from their dwelling, damage deposits which were wrongfully withheld, and
repairs which were not made after the landlord had been informed of their necessity.
Specifically, in the past six months we have received twelve complaints of harrass-
ment, twenty-three cases of eviction, 116 cases of damage deposits which were not
returned, and fifty-three cases of landlords failing to make repairs after being
informed of their necessity. We would also point out that the number of complaints
pertaining to repairs rises signifigantly in the winter months due to complaints of
inadequate heat.
Yet, this necessarily broad breakdown of complaints does not reflect the human
costs attendant to the housing situation in this city. It does not reflect, for
example, the misrepresentation and intimidation of tenants by landlords in order to
evade or ignore existing housing laws. These evasions result in conditions which
would border on the ludicrous were they not, unfortunately,true. Situations such
as that of that of the family which was forced to live for two weeks with a leakage
of raw sewage into the basement of their dwelling before the landlord got around
to having it repaired. Then there was the tenant who was told by the landlord
-z -
to fill the cracks in her floor with rags to "conserve heat" in an inadequately
heated apartment. While horror stories of this ilk are not the norm in Iowa City,
niether are they the exception.
These conditions are in part attributable to the very tight housing market in
Iowa City and to a tradition of tenant reluctance to assert their rights founded on
fear of loss. This fear is reflected in the agreement of tenants not only to sub-
standard housing conditions, but also to prohibitive provisions in leases. One
lease clause which is found in many Iowa City leases states that the tenant "releases
the lessor from any and all provisisons under the Iowa Housing Laws";another common
clause gives the landlord "a lien for the rent and all cost herein described at any
time remaining unpaid upon any and all property of the Lessee... whether such property
is exempt from execution and attachment or not. A third example, perhaps the most
unconscionable, informs that "any failure on the part of the TENANT to so pay, to
so perform and to so observe and comply with all provisions of the lease), shall at
the OWNER"S election work as a forfiture of this lease agreement ... and all rights
of the TFBANT thereunder, and thereupon the OWNER or it's agents, may re-enter the
subject premises... and expel, remove and put out the TENANT ... using such force as it
or it's agents shall deem necessary in so doing, and to repossess and enjoy the subject
premises again the same as though this lease agreement had never been entered into.
To effect such a forfeiture and termination of this lease agreement it shall not
be necessaryfor the OTMER to give ...notice of its election to forfeit said lease
agreement... Tenant hereby expressly waives all right to any such notice... after
any such failure to comply with the terms of the lease agreement (and without notice
from the landlord], the tenant shall be deemed guilty of forcible detainer of the
subject premises." The proposed tenant -landlord code would prohibit the inclusion
of lease provisions such as these in leases.
It cannot be too strongly reiterated that the underlying causes of both the
aforementioned complaints and the acceptance of prohibitive conditions and lease
provisions are interrelated. The tight housing market provides little incentive either
for the tenant to demand or for the landlord to supply. Lack of housing creates
high competition among tenants and fear of not being able to secure any type of
-3 -
housing at all.and fear of being evicted leads to passive acceptance in many cases
of sub -standard conditions.
The fact is that even if the tenant chooses to take action against her or his
la.'..jrd there are few methods of recourse currently open to them, If a tenant
does not have a lease they have their hands tied by the knowledge that the landlord
can retaliate by giving them a thirty day notice to move if they complain about
their housing conditions or attempt to take action. Ironically, tenants with
leases are not in a much better situation. They can try putting pressure on the
landlord to correct existing conditions, they can bring in the housing inspectors
if that is appropriate-- although we have had many tenants report that their landlord
ignored the housing inspector's letter telling what repairs need to be made or
the tenant can go to small claims court to try to recover monetary claims or for
damages.
This singular reliance upon judicial redress(after methods of tenant pressure
upon the landlord have been exhausted) not only over burdens the courts, but fails
to address the problems themselves. The remedy of going to court for damages forces
the tenant to argue his or her case as an exceptional situation; for example the
tenant whose landlord fails to make repairs may go to court to recover damages, but
this does not force the landlord to repair the situation which prompted the court
action.
The forms of redress which the proposed tenant -landlord code would provide,
such as rent withholding and repairing the apartment and deducting the cost from
the rent are usually shied away from by tenants because with no laws or court
precedents governing these actions tenants fear eviction for non-payment of rent.
The landlord -tenant ordinance which is being proposed would rectify the present
imbalance by providing by statute a state of mutuality and reciprocity. It would
provide a set of rules rather than the perpetuation of exceptions. For these reasons
the Protective Association for Tenants urges that the Council, after due consideration,
approve the ordinance in its present form.
Provided following this statement is a copy of the Protective Association for
Tenants Damage Deposit Checklist, to serve as an example of the type of checklist
which the ordinance would require all tenants and landlords to fill out in cases
involving damage deposits.
DAMAGE DEPOSIT CHECKLIST
Before taking possession of an apartment or soon after taking possession you
should examine the apartment very carefully and list all existing damages on
this sheet. Make one copy for your landlord and one for yourself and both
you and your landlord should sign the list when it is finished.
Kitchen: Problems?: Yes No
Sink(clean?in working condition?
connected to hot and cbld water?) _
Cabinets or Shelves(clean? in good
condition? doors working?)
Stove(clean? connected properly?
burners all working?) _
Refrigerator(clean? operating
properly? adequate coldness?)
Window or Vent Fan(windows,;ppefi?
fan working?)
Electrical outlets( two separate and
remote outlets in working condition?)
Floor(clean? water resistant?) _
Light fixture( working? secured
properly? _
Walls(clean? cracks? nail holes?) _
Explanation of problems:
Bathroom:
Toilet (works properly? leaks?) _
Sink, Bathtub/Shower (connected to
hot and cold water? working properly?) _
Door (closes properly?) _
Floor (clean? water resistant?) _
Towel racks (secured properly?) _
Cabinets or Shelves (clean? doors
working?) _
Window or Vent Fan(Window opens + closes?
fan works?) _
Light fixture (works properly?) _
Electrical outlet(works?) _
Explanation of problems:
Livingroom:
Floor or Carpeting (in good condition?
clean? burns or holes?
Walls ( clean? nail holes? cracks?
falling plaster?) peeling paint?) r _
Light fixture (works?) _
Electrical outlets ( at least two working
outlets?
-z -
Windows (open and close properly?)
Explanation of problems:
Bedroom(s):
Floor or Carpeting (in good condition?
clean? burns or holes?)
Walls (claan? nail holes? peeling paint?
cracks? falling plaster?)
Light fixtures (working?)
Electrical outlets (at least two working
outlets?)
Windws(open and close properly?)
Explanation of problems:
Structural Conditions:
Windows (airtight? cracked? broken?)
Screens (no hole6?)
Storm Windows (weather tight?
cracked? broken?)
Doors (good working condition? weather
tight?)
Locks (good working condition?)
Stairs (in good condition? handrails on
all sets with more than four steps?)
Walls and Ceiling (no falling plaster?
peeling paint? holes?)
Explanation of problems:
Furnishings: (If provided by landlord)
Furniturd (clean? in good condition?)
Curtin or Drapes (clean? in good condition?)
Air Conditioner or Fan (works properly?)
ExplAnation of problems:
Other:
Adequate Heating and Hot water
Exits ( There must be two possible
means of exit)
Rat and Roach Free?
Explanation of problems:
LESSEE
LESSOR
Yes No
DATE
DATE _
7t PI 6Y -LA -P
0 0
U( l ^v a,,L '.
w
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W
0
ec1ty of Iowa CHH
MEMORANDUM
DATI, September 20, 1977
To: Neal Berlin and City Council
FROM: Dick Plastino, Director of Public Works
RE: Unfavorable news on the Market/Jefferson up
Signalization
Edwards Construction feels that deteriorating weather conditions
and other factors make it necessary to begin the traffic signal-
ization on Market and Jefferson this coming spring rather than
this fall.
The contractor's completion date is May 26. As you know we had
hoped that the majority of the work would be completed this fall
with clean up work next spring. The contractor does have the
option of installing it next spring although this will take an
extremely high level of activity.
cc: Jim Brachtel
7173
*city of Iowa cito
DATIi September 19, 1977
TO: Neal Berlin and City Council
FROM: Dick PIastino, Director of Public Works
RE: Engineer's estimate for elevator at the Rec Center
Hansen, Lind, Meyer provides engineer's estimates in a range
rather than a fixed price. Their estimate for the elevator
project at the Re'c Center was $73,650 to $87,840.
7
F-1
CITY CF
CIVIC CENTER 410 E WASHINGTON ST
September 22, 1977
Dear Sidewalk Petitioner:
Re: Sidewalk Assessment Program
I-
L-1
OWA CITY
IOVdA CITY IoW.-�, 52240 (310/) 35L.130,)
Recently you and your neighbors petitioned the City Council for
construction of sidewalks for school children walking to and from
Horace Mann school.
The City has several compelling sidewalk needs as outlined in five
year sidewalk plan done last year.
Sidewalks are generally installed by a special assessment procedure
against the abutting property owner. These procedures are exceedingly
complicated and consume an enormous share of engineering staff time.
It was a decision of the City Council upon recommendation of Public
Works that all sidewalk programs be deferred until 1980 due to the
extensive engineering workload being generated by urban renewal projects.
We are truly sorry we are not able to respond promptly to sidewalk needs;
however, this must be done to maintain a workload within the capabilities
of the staff.
We are sorry to disappoint you regarding this sidewalk; however, we do
hope we have explained the reason why.
Sincerel ,
Richard J. Plas
Director of Pu is Works
RJP/jp
cc: Neal Berlin
City Council
3775
0
0
COMM [IICP.. • • CIVIL CEN T CH 410 F. WASIRNGTON ST.
IOWA CITY, 11NYA rt}.IH
1O1'JI35`1 IWU
�E September 20, 1977
aw,A cnr: wWi•
MAYOR
MARY NEUHAUSER
COUNCILMEMBEHS
JOHN BALMER
CAROLbPROWE
LP.FOSTEH
OAVIOPERRET
MAR SELLER
ROBERTVEVERA
Mrs. Nancy Seiberling
Project GREEN
Route 1
North Liberty, Iowa 52317
Dear Nancy:
The City staff has worked in conjunction with Jim Hynes to locate a
commemorative plane suitable for display purposes. A report of the
findings is attached. At an early opportunity, I would like to meet with
representatives of the Airport Commission special committee and with
representatives of Project GREEN to discuss alternatives. We will contact
you to schedule a convenient meeting time.
7Si c �re� yours,
T
eal G. E3 rlin
City Edanager
Is
cc: City Council
Same letter mailed to Flo Beth Ehninger of Project GREEN and C.E. Peterson
of the Airport Commission. The enclosure was furnished to the Council at
the informal meeting of September 19, 1977.
5776 1
` • i
FRIENDS OF THE CHILDREN'S MUSEUM
ANNUAL REPORT for 1976-1977
This past year sawthe establishment of The Children's
Museum in Iowa City. Our major project was an exhibit
entitled Pioneer Life in Iowa located at the Log Cabins
in City Park, our activities during the winter and spring
cantered around publicizing and raising funds for the
project. These included a benefit concert by the Iowa
City Girls' Choir, an Introduction to Gera for Young People
by the Opera Theatre Workshop at the University of Iowa,
participation in,the Saturday afternoon Recreation Program
of the Iowa City Parks and Recreation Department and
in the Nonesuch Fair.
With the signing of a lease v#h the City for the
use of the Log Cabins, the Friends began to plan and execute
the Pioneer Life exhibit, The City of Iowa City and the
Direc.ir of Parks and Recreation, Dennie Showalter have
been most cooperative in restoring„the cabins to good
physical condition,, ,The interior of the Log Home van re-
furbished by volunteer help. The fireplace material was
donated by 01' World Stone. The log furniture wan constructed
by Dale Dye's fifth and sixth period Biology Classes at .
West High School.,, other furnishings were donated orvere
paid for through;fypds raised for the project, (See List
of Patrons),
Over two hundred people attended.our opening Day
activities on Saturday, June 4, our guest speaker was
Irving Weber, a local historian. Representatives from the
city and the oirl Scotfts helped make the day a significant
377.7
one for us. Regular summer hours for The Children's Museum
vere Monday -Friday, 130-4:30 p.m., June 6 -August 26.
The Summer Program included visiting hours for the
Log Home, Pioneer Crafts and Demonstrations, readings from
Laura Ingalls Wilder's books, and other art and nature
activities. (See Attached sheets for posted activities)
The staff for the Summer Program included three girls
from the Summer CETA program, and the undersigned as general
supervisor. Additional help was provid0d by board members
Lois Lunette *rd Sue Shawhan and other,volunteers. Mr.
Alvin schioeder was a regular volunteer during the month
of August, Hu provided an excellent site interpretation.
People who led the demonstrations added much to the overall
program,
Fund:.rsiii'ng efforts involved,contacting businesses
and service'erganizatioae. Letters and brochures explaining
our pro3sai.iipt Co twenty lour bueineaees. Six of these
responded ,,vAb taeh donations amounting to $315 and one,
with an in.kjnd donation. (See list of. patrons). Other
busineseis t4t' gave. in-kind donations were O1' World Stone,
Iowa I.usber, Fkbe, Lenoch 6 Cilek, Aero, Rental, and Hy=Vee
Grocery Stai4s. Several businesaes..lgdicated that budget
decisions were made in the fall ar4..that we should contact
them then. Ten service organizatigns.wer contacted. I spoke
to three Optimist Clubs and one meeting of the Noon Lions'
Club. Lois Lunetta spoke to two w9men's organizations -
the women of First Congregational (church and the noon lunch -
66h of the .t!! b City Women's Clubs. Numbrous individuals
responded Lo,.$ a presentations or from contact with the project
or boaril-aii�. We have raised a total of $1,138,28
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for the fiscal year. (See Treasurers Report).
The response from the community has been gratifying.
Attendance figures indicate that the project was successful.
Over 2,500 people visited the Log Home and over 600 people
participated in the activities, (See attached tables for
further information), The Sunsmer Program at the Log Cabins
has created an interest in the expansion of the program at
the cabins and in the creation of a permanent Children's
Museum. Future development should be out concern for the
coning year, ,
FUTURE DEVELOPMENT'
Our discussion of future development must focus on three
areas expansion and growtht fund,raisings and staffing
priorities.
Logical expansions of the current exhibit would be
refurbishing of the, Trading Post including the establishment
of a Museum Storel possible additions to the Log Homes a
model Indian wickiupt and a scale model keelboat, New
programing possibilities might inglude,class activities
for elementary school children, tours for out of town groups,
and possible mini, -courses next summer along with our regular
activity program..
We should also consider expansion of the Children's
Museum beyond the_Pioneer Life exhibit, The City of Iowa
City has indicated that the old zoo building is still avail-
able. This building might serve as a Science Center,
Additional thought should be given to a year round program
Fund raising will continue to occupy a major portion
of our efforts. Consideration should be given to an annual
fund raising event. Our approach to businesses, industry,
and individuals should be evaluated and a standard appeal
should be formulated. The question of reapplying to United
Way for possible support should be considered. Other sources
of income should,be discussed.
Staff for the Summer Program is a major priority,
inextricably bound up with the amrount of money we need to
raise next year, We, must hire a general supervisor for the
Summer Program, Additional staff should be sought through
the Summer CETA program. Any ongoing staff will have to
determined in the light of the expansion of the program and/
or the Childrents Museum.
The support of the board and the community has made
the first phase of this project a success. I hope our
future endeavors will bring the gratification and sense
of accomplishment that this first one has. I wish to
personally thank each of the people who,have helped in
some way to make ,this ,a success,
Respectfully submitted,
Marilyn M. Nickelsburg, U//y
President
E
LIST OF PATRONS
Aero Rental
Mr. & Mrs. John Bentler
Mr. & Mrs. Virgil Bowers
Mr. Robert Brenneman
Mr. & Mrs. Del Brown
Dr. & Mrs. Herbert Buchsbaum
Mr. G.W. Buxton
Mrs. M. Eleanor Dunn
Dr. & Mrs. Victor Edwards
Mrs. Mary Ellsworth
Fabs of Iowa City
First National Bank
Dale Dye's 5th & 6th Period
Biology Class at
West High School
Mrs. Katherine Dickson
Mr. & Mrs. George Gay
Hartwig Motors
Hy -Vee Food Stores
Iowa City Women's Club
Iowa -Illinois Gas & Electric Co.
Iowa Lumber Co.
Iowa State Bank
Leff, Leff, Leff & Haupert
F-1
Lenoch & Cilek
Mr. & Mrs. Vincent Lunetta
Mr. & Mrs. Salvatore Lunetta
Mr. George Klingler
Mr. & Mrs. William Klink
Mrs. Richard Kruse
Mr. & Mrs. J. Kenneth Kuntz
Mr. Charles Martin
Mid -State Hearing Aids, Inc.
Nagle Lumber
Mr. & Mrs. George Nickelsburg
Ol'World Store Products
Optimist Club Iowa City, Noon
Ms. Georgians Perret
Mr. & Mrs. George Petsel
Proctor & Gamble
Mrs. W.L. Propst
Mr. & Mrs. Stanley Shawhan
Dr. & Mrs. C.A. Skaugstad
Mr. & Mrs. Howard Sokol
Mr. & Mrs. Stanley Wawzonek
Mr. & Mrs. George Woodworth
Mr. W.A. Young
N
0 0
THE C H I L D REN ' S MUSEUM
Log Cabins - City Park
FOR CHILDREN IN JUNE
Mondays
June 13 - Listening Walk
for 4-5 yr. olds
1:30 p.m.
June 27 - Touching Walk
for 4-5 yr. olds
1:30 p.m.
Limited to the first ten
children who come
Thursdays - Every Thurs.
Creative Writing Session
Ages 6 up - 2:30 p.m.
Tuesdays - Every Tues.
Readings from Laura
Ingalls Wilder's Books
at 2 p.m.
Fridays - at 2:00 p.m.
Pioneer Crafts
June 10 - Cradle and
Covered Wagons
June 17 - Quilt Making
June 24 - Corn Husk Dolls
ages 10 up
DEMONSTRATIONS FOR CHILDREN IN JUNE
Wednesdays - 2-3 p.m.
June 8 - Spinning Demonstration
June 15 - Bread 4 Butter Making
June 22 - Candle Making
June 29 - Fiddle Fest
HOURS
Monday through Friday, 1:30-4:30
June 6 - August 26
THE CHILDREN'S MUSEUM
Log Cabins - City Park
ACTIVITIES FOR CHILDREN IN JULY
Tuesdays - 2 p.m.
July 5 - Wood Sculpture
July 12 - Animal Crafts
July 19 - Leaf Prints
July 26 - Nature Collages
Fridays - 2 p.m.
Pioneer Crafts
Thursdays - Every Thurs. 2 p.m.
Iowa City Public Library Presents
StoryTime with Bettye Black
July 1 - Clay Pots
July
15
- Log Benches and Stools
July 8 - Willow Whistles
July
22
- Twig Rafts
July
29
- Nut Head Clothespin Dolls
DEMONSTRATIONS FOR CHILDREN IN JULY
Wednesdays - 2 - 3 p.m.
July 6 - Pioneer Clothes and Guns
July Z3 - Pioneer Games and Dances
July 20 - Corn Food Products
July 27 - Dyeing Wool
HOURS
Monday through Friday, 1:30-4:30
Closed July 4th
0 0
T H E C H I L D R E N' S M U S E U M
Log Cabins - City Park
ACTIVITIES FOR CHILDREN IN AUGUST
Tuesdays - 2 p.m.
August 2 - Paper Toys
August 9 - Corn Husk Balls
August 16 - Game Stick
August 23 - Bread Clay Objects
Fridaye - 2 p.m. - Pioneer Crafts
August 5 - Leather Pouches
August 12 - Cardboard Log Cabins
August 19 - Pomander Ball
August 26 - Paper Cutting (Quilling)
HOURS
Thursdays - Every Thura. 2 p.m.
Readings from Laura Ingalls
Wilder's books
Monday through Friday, 1:30-4:30
The Museum will close August 26
0 0
Friends of The Children's Museum
Financial Statoment
September 6 1977
Balance on Hand Jan. 1 1977
Income
Girls Choir Concert 2200.00
Donations 904.00
Disbursements
City of Iowa City
1.00
Melvin Syhhorst
(Secretary of State of Iowa)
1.00
J. Hoover
25.00
i4arilyn Nickelsburl;
2$2.57
Esters Pollock
25.00
Coralville Saw Mill
39.0111,
U. of I. Printing Service
1110.46
Nagle Lumber
90.11
Alderman & Cahiler Inc.
45.00
Reeves 'Hood Works
125.00
Balance on Hand September 6 1977
Donations at Site 34.28
used an Petty cash
064.55
1104.00
733.02
x435.53
PIONEER LIFE IN IOWA - Attendance
Week of Log Home Activities (Monthly)
Opening Day 200
June 4
Jure 6-10 384 Nature Walks - 10
Jure 13-17 359 Readings - 21
Demonstrations 145
June 12-25 303 Pioneer Crafts 40
June 28 -July 1 224
July
5-7
223
Art ejects -
50
July
11-15
211
Demonstrations
93
133
Pioneer Crafts 67
August
Pioneer Crafts
60
July
18-22
164
IC.PL Story
Total622
July
25-29
164
Hour
42
Aug%wt
1 -5
167
Arts 6 Crafts - 56
August
8-12
86
Readings 18
AugKst
15-19
133
Pioneer Crafts 67
August
22-26
87
Total 2,705
Total622
MINUTES OF STAFF MEETING
September 21, 1977
Departmental referrals from the informal and formal Council meetings were
distributed to the staff.
The Personnel Specialist advised the staff that timely submission of payroll
sheets (attendance sheets) and payroll changes would be necessary if all employees
are to be paid on time. A spirited discussion followed regarding the payroll
system, including forms and responsibilities. The City Manager's Secretary was
requested to schedule a meeting to include the City Manager, Finance Director,
and Human Relations Director to discuss this subject and to develop an improved
system.
( DEPARTMENT REFERRALS
INFORMAL SEPTEMBER 19, 1977
DATE
REFERRED
DATE
Q w �
SUBJECT
REc D
ro
DUE
� a
COMMENTS/STATUS
¢
Ljj
W
d
ate wl} n Housing Code is coming to Cit
Housing Commission is meeting with the
ounce •Retaliatory clause is it in the
City Council Friday at 1:00 p.m.
code? Separate provision for with -hold
g 9/19
HOUSING
Notify Charter Coach that license is
required if they do not already have on
•iLEGA1.
Send notice to Charter Coaches if
Check to see if they have license..,
Tthey
CTY CLRK
do not have license.
Verne Miller -problem of getting to
work by 7:00 a.m. — /2-- v• .;_(
9/19
CTY MGR
telephone and investigate
Public Works Monthly report
9/19
PUB WRKS
Traffic Division - reorgan — Me was
Bus Division - turnover
Council policy to remove modulars from
inton S1
reet as
Do not lease modulars after tenant
they become vacant.
vacates.
Northside Preservation Study - Bill
•
Keating. 1/2 FED Study
9/19
COMM DEV
Transit Shelters for bus system, Cost G
installation - Cost of University
9/19
PUB WRKS
structures, UMfA funds, explore alternal
ves
Why is bus subsidy figure higher?
9/19
PUB WRKS
What is state organization for building
When is State energy conference -
officials to'educate inspectors on
OCT 20 - 21?
Energy Code implementation?
9/19
HOUSING
INFORMAL SEPTEMBER 19 continued
DEPARTMENT
REFERRALS
SUBJECT
DATE
RECD
REFERRED
TO
DATE
DUEa
¢ w ¢
w ¢
~
¢
°'
COMMENTS/STATUS
Closing off Dubuque Street
9/19
PUB 19RKS
Remove poles from sidewalks
• Change personnel rules to allow
city employees to run for public
office by taking a leave of absence.
9/19
LEGAL
Prepare resolution to personnel rules
for September 27 meeting.
FORMAL SEPTEMBER 20, 1977
DEPARTMENT REFERRALS
C]
SUBJECT
DATE
REFERRED
DATE
¢ w ¢
~
RECD
To
DUE
2 �,
¢
COMMENTS/STATUS
w a:
a
Louis Cox, 351-6949. Notify when
mtg will be held on Old Jet.
9/19
CTY MGR
Bud Sueppel - Sweetings Flower Shop
Who is responsible for sidewalk
1 E[jq L
Post to be removed from sidewalk
9/19
PUB WRKS
Communica ion with College B Dubuque
mercha
s
Mud on AAS
Installation of fences - no coord w/ almin
Defer public hearing on FREEWAY 518
until Oct 25
9/19
CTY CLRK
CTY MGR
put on agenda on Oct 25
City employees run for City Council w/
leave of absence when papers are filed
for candidate instead of resignation
9/19
LEGAL
draft resolution for September 27 meetir
Do not bill Lewis for oiling
9/19
FINANCE
by
New industry - resolution on Scott
Blvd. Acquire 100 ft ROW and
9/19
PUB WRKS
i
begin plans for immed improvement
Purchase of Showers property. Schedule
of acquisition
9/19
PARKS
Send letter to legislators re: social
M_
security for Police E Fire. Add costs
'retirement costs.
9/19
FORMAL SEPTEMBER 20
DEPARTMENT REFERRALS
SUBJECT
DATE
RECD
REFERRED
To
DATE
DUE
D
¢ W 9;
2 a
w ¢
cc
¢
a
COMMENTS/STATUS
Remove modulars as soon as possible
and not rent for any purpose.
9/19
COMM DEV
PUB WRKS
Notify Charter Coach & Airport limo
of Taxi ordinance
9/20
LEGAL
Ferson avenue appraisal 8xl20 or 160
defer 1 week. Check the appraisal
9/19
LEGAL
Add to September 27 agenda
kItV of Iowa CHO
MEMORANDUM
DATE: September 19, 1977
TO: Neal Berlin, City Manager
FROM: Mike Kucharzak, Director, Housing F, Inspection Services
RE: Monthly Report - August 1977
Attached is the monthly report for the Department of Housing B Inspection
Services.
779
I:
0 0
REHAB DIVISION
Goals through December 31, 1977
1. Complete construction on 16 structures.
2. 26 - 30 contracts in force.
3. Spend or encumber between $200,000 - $230,000.
August Activities
1. First formal advertising campaign under way.
5 structures - estimate value - $50,000.
To date limited response due to market conditions.
10 firms picked up packets (including 7 new companies).
2. 3 structure surveys completed.
7 financial interviews conducted.
3. 3 structures under construction.
10 structures out for bids.
4. Opened 403 area to Grant Program (18 Aug., 1977).
S. Finance officer attended Urban Potential Workshop.
Proposed September Activities
1. Continue intense finance interview schedule, updating our past -
inquiry list, seeking grant eligible cases.
2. Review bids from formal advertising.
3. First Rehab 1 Loan Closing.
C,
GOATS:
110NINq
•
I. 309 UNITS SECTION. 8, EXISTING UNITS.
Convert 72 additional units of Section 23 to Section 8 units.
Continue to provide assistance to families under Section 23
reducing the number of units to 0 by June 20, 1978.
II. 64 UNITS NEW CONSTRUCTION UNDER SECTION 8. To assist in
providing additional housing units for low income, elderly and
handicapped persons.
III. HOUSING ASSISTANCE PIAN. Provide input to the Housing Assistance
Plan for the third year HCDA application.
IV. HOUSING 0aMMISSIO0. Provide administrative support to the Iowa
City Housing Commission.
AUGUST ACTIVITY:
I. During August, five units were brought into Section 8 Program.
One was a Section 23 conversion. Four Section 23 were
terminated. Total units Section 8, 231. Total both programs, 273.
12 annual, or final, 5 move in inspections were performed.
8 applications for Section 8 were approved.
II. 64 Units New Construction. Willow Street tenants signed leases
and drew for apartment number. Construction delay caused
postponement of occupancy until approximately,Septenber 15.
III. Completed.
IV. The Housing Crnmission met on August 3, 1977. No quorum. Informal
discussion was held regarding Housing Maintenance and Occupancy Code.
I, During September, 10 units will be converted from Section 23 to
Section B. It is projected that 10 new units will be brought
into the Section 8 Program.
II. 64 Units New Construction. Occupancy in the Willow Street building
is anticipated. An Open House is being planned for the latter
part of September.
III. Completed.
IV. Housing Comrission. The Housing Commission is scheduled to meet on
September 7, 1977. The Tenant Lanalord Ordinance will be the main
topic of discussion.
BUILDING INSPECTION DIVISION
August Activity:
1. Contracted with Robert Richie to serve temporarily as Plumbing
Inspector. Contract completed, Ralph Taylor is back as Plumbing
Inspector.
2. Completed review of all codes except the Uniform Plumbing Code.
Presented same to Council and Council adopted all codes. The
Plumbing Code will be sent to Council this month.
3. Initiated a newsletter to help tighten down on inspection and
permiting techniques. Established a form whereby written notice
is left on all properties at the time field inspections are made.
4. Developed a system and hired temporary clerical personnel to
establish a filing system so that Building Division records and
Housing Division records are kept in one master file.
71 permits were issued for a monthly total of $2,294,146 in construction.
This brought the total for this year to 477 permits reflecting $12,719,357
in construction.
The above figures are composed of 15 new single family dwellings, 4
multiple, 2 manufacturing and 7 other types of new construction. In
addition, 43 alteration permits and 3 demolition permits were issued.
Goals for September
1. Complete the review of the Uniform Plumbing Code and submit same to
Council for adoption.
2. Continue the establishment of a property file system.
3. Conduct an in service training session in conjunction with the
Engineering Division of the Department of Public works on the Flood
Plain Ordinance to assure proper enforcement of this code.
4. Evaluate divisional job titles and made decisions on vacant positions
and possible reorganization of duties within the division.
HOUSING INSPECTION
Goals for September
1. Submit Code to Council.
2. Begin inspection of all multiple dwellings containing 10 to 19 units.
3. Continue followup of Area A and B properties.
4. Plan and begin in-service training of inspectors (new code).
5. Continue initial inspections of Area 8, Sector 12.
August Activity
1. 213 structures inspected.
9S6 dwelling units inspected.
431 rooming units inspected.
2. 4 systematic area inspections.
32 routine annual inspections.
8 complaint inspections.
3. 46 violation letters issued.
No emergency orders issued.
47 compliances issued.
4. In compliance:
47 structures.
190 dwelling units.
121 rooming units.
S. Submitted Minimum Housing Code to Housing Commission.
6. Completed annual inspections for all multiple dwellings containing more
than 20 units.
7. Revised correspondence paper flow. Revised filing system. Work underway
on new inspection forms.
9 0
i �r e ►��sa����
Nlore and more -lmerit;ms find if incmisingly diflicull
to huy it new honk. Congressional action may help buyers get mortgages,
bill the answer to the price problem itself lies elsewhere
�
cl.t• FAMILIES with lallnaal in-
ronnei of inure Than $20000
can Mill afford the Amerirmn dre:un:
n vim�cevereil collage complele with
crabgrass and ;r mortgage, a lown-
house with potted pkurli on the
patio, or a high-rise rnudominium
with a had cony.
The Median price for w••s single-
family homes hxlay is approaching
S CQ0.
Lenders normally will met mala• n
mortgage loll that ii mon [hall
twice the amount of the borrower's
hought by middle-income families
with annual incomes of $10,000 to
$20,0W, and four percent were pur-
chnsed by households with incomes
of lois than $10,000.
,lust a decade earlier the percent.
nges were dramatically different.
Thirlyamn percent of (he horne buy-
ers were in what was then considered
lbr' affluent bracket, hou,eholds with
incwnes above $10,000; 53 percent
were in the S5,0W-to-SI0,0()(1 income
mrd 17 percent were it) the
hnnoo income brarket.
mllmai income. 'Thus, :r Innna•hald
unit he in the $20,00(1 -a -year ela.+i Crushing the. Anierimin dream
In lake nota $40011(1 mortgage ](,;Ill. "The American drenin is being
Unfortunrtelp, nnly one family nut crushed" by ".,in affordability pruh-
of roar is in that income Imp ket. )(-Ili" in housing, .lay .Innis, under
Th(- situation wvrrs•ns v,ILI! year secretary of the Department of I fnus-
ns the real incomes of mn,t American ing and Urban Development. sap's.
-bmil'•ec ib-tim i of iuCaliun--µ!!;[c•!t Nit. Janis warns that, if this proh.
I. sherd_- lent is not solved, humc builders will
ire;;, fail in keep pace with incn•ms•-, find themselves without :I mado-I.
�in housing rocs.---�----- .lust how strong is Ihot rnurketfor
In 1976 the nm•elian f.lmily incuol.• Ill.. vine -covered votloge? Have Ili( -
was $14,5011,
hewas$N;i1N, and the medi;ul imonn' aspirations nnrl life-style of young
of porch:uers of new homes was Anreric:ms changed? Do they wart
$21,615. Of these home buyer,, 43
percent were families in which hath
husbands and wives were working.
What about the other Auu•rican
households?
A luxury market
"!Tome building has wine from u
mn,i market m :r luxury market,"
the Joint Center for Urban Slurlies
of the: ?fa?sachnwlts lo4titute of
Technoloty and liamird Cnivereily
concludes.
In 197b•1976, the center point.:
out, 5S percent of new hourz-s were
purchnavl by affluent household♦
with incomes of name th.ul .520.000
annually. Thirty-eight pa'o•nl were
the ::ane things that Iheur parents
wnnled?
Dr. Arthur 1'. Salomon, director of
the M. f. '1'.-Ifa ird urban center,
onswe•n titme 0ueitions in pail.
"Young people loday still have a
:,bong, deeply rooted commitment to
that American dre•nun;' he says.
•"1'livy feel they have begun In nvukc
it when they can buy Iho house with
a patch of grass."
More young households
Wi,hing, of course, doesn't make
m%ner.;hip so. Unless Current rust
trendi_urocury_ybed. Ihv 'irigh. fanoit
JygGII�L' will_Ir4• fyrtiv'r !tut of reach
of mu,lMoab honsehold.e which are
incr'a,ing rnpidl;: in number .0 a
r --salt of a Imrvrzu baby Iwnm that
started in the mid -1950'x. More Ilion
four million hirths were nerorded :m-
nually in that period.
The NI. 1.'T: Harvard urban center
has i.amued n ropnrl entitled •"1'lu• Na -
lion's Housing: 197.5-1985' which
,lows:
• Furly-six percent of U. S. fan-
ilie•s could anold to Irgy a ❑avlian-
prired new house in 19711, but only
27 perseul could last year.
• The median _trice_ for n mew
l.opa S'::{dr111_o 1970. had soao_il to
S,L1;1uu I:c_t vear and could rearh
$75 O1_r11 in the early 1980'x.
hinny Imusim! rxperle say they
don't think Ila rise in the year;
ohend will he thot great. But Com-
merce nepartmeut,frgurr•s show that
in .lune tho median price far a new
horne was $490011.
Action in Washington
Solving the problenn of affordabil-
ity of housing, p: ilicularly for blue-
collar families nnrl fnr young families
of any dom ripliun, is not as high on
the trader administration priority
list ;is ma nv would like. 'There should
I..! sonar easing or the. probienn I,; a
result of expected passage of ad.
ministration-supporlcrl legislation to
raise federally insured mortgage Iran
ceilings nnrl through grey for use of
exi:-.tiog Gvberal sohsidy progl'ao.:.
financial institutions are bulging
with available mortgage funds, and
the rurmnt rule of hnuaing sums in.
dicaes that 1.F;6 million private
rhvelliugs will be constructed during
the year.
V ATIO?:'x l:1'st3Fsi ;•F:11TT-•IISF.n 14'r7 83
3780
HUD Secretary Patricia Roberts Harris says government must work
w;m the private sector to provide capital needed for housing.
Government alone cannot solve U. S. housing problems, she says
exi..itiug housing in the centrad see-
liou., of cities. HUD Secretary Pa-
tricia Roberts Harris hrts made this
clear. "In the past we have tended to
follow the path of le:mlresistance in
making housing available to our peo-
ple,- she says. "We have funded the
growth of our suburbs, while we have
tended to ignore the valuable capihd
of our citie-"
Doing without
Most Americm families that have
Irought or :ire in the market for new
housing find themAves in some-
thing of s crisis. Trxla.v Americm
households are allocating bigger and
bigger chunks of their after -Lax in-
come to housing expense, The latest
Dep;irtment of Commerce statistic's
show households spending, on aver-
age, :dl percent of their income for
housing, including furnishings. That
was in 1972.1973, before the full im-
pact of increasexl energy prices. Tra-
ditionally, housing had accounted for
23 percent of a Lamilv's income.
To purchase existing or now
hmn.�s, the M, I, T: Ifarward center
finds, families ;ire doing without in
other areas. Some are buying odd
homes and rehabilitating thein, anti
H4
than is growing inlereslin no -frill,
basic homes which dn-it-yourselfers
cul complete.
Yet when [ionic builders have trick]
offering basic houses in reveot ycan.
the response often has been disnp-
pointing. Harvey G. liallenbeck,
horsing expert at the Chamber of
Commerce of the United Stales, says
That many hovers apparently are not
yet ready to lower their sights.
"Orn of the problems Way is Ulat
an average family with ml average
income doc•sni t buy an average
house," Lays Michael Sumichrast,
chief economist for the National As-
sociation of Home Builders of Thi -
U. S.
Today's average hone, fur px
ample•, nol't have a family room and
21/2 baths, he air-conditioned, and
have fireplaces and n g;imge. Only
nlxml 2.1 percent of all new singlp-
family hones erre without garages.
A form of investment
"Having more costs more;" Mr.
Sumichmsl notes.
He and other housing vcnuninir.t.,
warn about the tendency to rely loo
unlch of slalislicti. "The concept of
affordability, • he slYS, "is difficult to
Rel aOfle all null cum muco tit.
fit-killto OR, To measure afford-
obilily by tw'di:ul income is to ignore
a Int of other things, such os cisb
holdinl!s and t'rluity, in other read t:s-
t.tc. Our survey;. show that firs( HIM -
buyers of new houses necount for
nliout 32 percent of all home buyers."
Murton L. I ter, director of huus-
iug studies at The Urban Instiltte, u
%vashinglnn haserl research org:mivm
tion, criticizes some anah•ses showinc
fnutilies ciri t afford housing. The
analyses "have been loo sirilplistic,"
hu srvs.
The fuel that Inuuv familie�
Locate more than 25 percent of their
inconte•s to hualaim� he save i[llil:
pales that such families incre:c ingly
are considering residential property
as it form of investment.
"People are accruing wealth," he
says. "Hut the basic problem is that
families which aren't on this train
haven hard lime getting on it •'
The used -house market
John J. SLillord, research director
nod a vice president of the United
States League of Savings Associa.
lines, conle•ntl., that survey:, place ton
much emphasis on new -home prices
and ignore the used -house market.
"A lot of housing is available in all
price ra lges," he says, "and much of
it call bu purchased even by those
fnnlilies living on what the govern-
mcot calls ;,it austere budget."
And a recent report by the Nation-
al Association of Realtors says the
assertion flint nuist Americo fam-
ilia, have liven priced out of the
single-family housing market cannot
be reconciled with the high rate of
new ,iligle.family construction. The
repurl contends an emphasis on Itl-
dian prices has unduly cursed Pes-
simism. Half of :dl new houses unit
Iwo Thirds of all older humps are
priced below the new -home nmdian
price, the rvpnrl points (lot -
The rt:port
ut.Thert:portyilsn cays Miall if ir1a-
li,r�Ly„Ll��ht n ntit•r cVlllift�
L1LClLU'11L)?L'-.`.1L'111f.1Si1LL.'L'lll'1 l r r
lhy_jttmir 1't, .'cr Just a return It, a
three percent inflation mill. the rv-
porl snys, would cut ill half the am
nu:d inrrpa-vs in hone prices and
bring mortgage odes down two per-
cent. In the (1.5 to seven percent
range.
Lund cost :nomas
\\'bene hacc the costs that gu into
the Price of the new single-f:uuily
dwelling increased most`.'
NATION'S IimslNESS Sii 1.1'k: tl l:I:It 19::
In 1770, according to a study, 46.2 percent of U. S. lamnie9 could
afford a median -priced new house. Only 27 percent could last year.
A Congressional Budget Office rn-
porl Inst January compared costs
for n new home that sold for $24,300
in 1970 with those for ono that sold
fur $37,%X) in 1974. The, findings
were revealing.
Labor and materials, which ac-
coIIIIlf9l for 54 purcent of the total
Ili 1970, crime to 48 percent in 1974.
However, the -percentage of the total
going for land, construction financ-
ing, and other costs, such as market-
ing, increased. Profit,, ars a percent-
age of tilos, remained at 12 percent.
La dollars, labor and mulurials in.
creased $4,852, while the other costs
increased $8,148.
Laid cost rose from $4,925 in 1970
In $7,958 in 1974. Construction fr-
mncing cost went from $1,580 In
$3,917.
Government's affect
Dr. Bernard J. Frieden, professor
of urban studies at M. 1. T. arl
former director of the M. 7. 'T: Har-
vard center, predicts the day is fast
appro:,rhie;; whulhuil". uver� s _will
turn lu-�ayernment fn hon8_lo
an-Liffucdabilif v IrnlilraaJlurt•.g lvf:ul-
ment itsr_If has r;a-usc(J�jjj. least in
,LarhHe Llx% thal. ldailc.L'oxelltilent
mavpol_he ul;le to xth•e the ural,_
Ij:jajI (,1r at least slot) doing things
that nuke the problem more grave.
88
la> luirliculnry he I'm'hasire-. Lov-
enune•nt should change I,olicies on
f:rmvtlt controls r,_ tility restrictions,
,rid cnvironlnimnl reviews that lir
r_Ilect out the harden of rlranin • up
nn entire community_s environment
nnboven oLnaWJlo1ns'1l-
eyoon.. builders_LtCc•_IJebI1 cat1'1
hn•ds by local runlrob," says 1)r.
Frieden. He contends that HUD
:;hadd be the advocde for housing
just as the Enviromnen Ud Protection
Agency is for the environment.
Ar. Solomon, the M. I. T. -Harvard
center's current director, adds that
"when vont restrict develoaMpill n
VA�PIac" v°.t' �IIlYc—fro nricev in
,areas where you can develon."
Overkill in controls
Hobert Arquilla, a Chicago builder
and president of the National Asso-
ciation of Home Builders, says that
builders "are getting closer to some
of the answers on huw to control
costs." But he adds ruefully: "Ton
years ago it took four In five months
to get a subrlivisina started. Now it
takes 21/1 years."
Ife says r_nvironment_land -, evo-
Iog1c;ILt:onb:lu, ve Illal:ll ticvrst:iliug.
A:t:tnS+autlule.lff�cilu.lh[Lt':a�aL
•a tl(1- g11Lf24-eel h•aLlcld fnnil-end
casts of $S'S1_(N70 for flexed control,
which added Males" to be
NATION'S IIIISINI?Ss • ae:I•a'F.1l nfat I977
I ast A&, ('11 unit. The requirement
was a flood control system ca -
(if h:uulling the worst possible
rain i❑ 500 vIcu's.
"A IIIILye:u• rain vp,riliraliun
v:ould have I:re:illy reduced cools,"
Under Scrrelary of JIM) Janis
cite, the case of a Florida suburban
jurisdiction that r'equirerl street:: In
have the :moue thickness of pavrno-lit
as a nearby interstate highw:a v.
Mr. Janis is n member of a special
task fore, established in HIND to de-
velop a progr:nn to slow the rise in
housing costs and bring them more
Ili line with income.
or, step that HUD Secretary Ilar-
ris proposes i. In phase construction
of federally subsidized housing so
that it continues in periods of err:s-
sion as well as growth. Referring to
the Nixon adrninislralion's 1973 mor-
atoriurn on subsidized housing, Mrs.
Harris says: "We in government
promise that we will not again revert
to the kind of thinking that makes our
assisted housing programs a coun-
tercyclical tool. That approach is
mid-bloodal because it ignores the
needs of the poor. It is also eco-
nonaically unsrnmd and inefficient.
Aloxl imporlunt, it is not geared to
ensuring n hese for the provision of
an adequate supply of decent, of -
Irritable housing."
What logislntion would do
The administration -supported bill
which should help the prospective
huyer of unsubsidized housing is
11. It. 6655, 'Tile Housing and (!om-
nunit v Development Act of 1977.
A key feature of this House bill
;,till a similar Senate bill is an in-
crease in file maximum mortgage
under the basic Federal Housing Ad-
ministration single-family mortgage
insumnm program. The maximum
rises to $00,000 front the present
$15,00. Another feature is a lower
down -payment requirement. The
down payment on a $45,1'1(10 house
has been $5,750 with FHA financing.
Under the legislation, the down pay-
ment is lowered to $1,750.
An improvement is also in store
for present homeowners mad for those
who participate in n rehabilitation
program I-IIJI) will emphasize in the.
future.'I'hc F1 [A Title One home int-
provenent local tunximurn rises to
ti15,(xNl from $M,O(g) and the repay-
ment lino to 15 years from 12 years.
Ina :Jap to aid the honor buyer
who can expect higher income in fu -
„. .
lure y"u-; file Irt;i:anliou fonnnl
01
Iliv gnithiatvd Motif:age pnr,;r:un,
wh id unlit naw• hu. Imen in Ihr ex
pvriut, 111.11 -vq;r, :% ,;;ra lauded mal l
I:;u:v is unr in which low e.uiv pn�
Ionil:; riga- mer limo.
'1110, L•Aidation, pals,, -d by I..Ih
house; of ('ung; n'ss, is floc in a joial
Sen:de•Hou•r eoufr•n•nre In reoho
dilfrrences Ihat du not involve Ill.,
changes in morlgaFing null hnntr• for
pruvemrnl lo:ms.
A nuodwr of nlhvr hills have Ivvu
introduced in (Conus'; to .solve the
nlfurdahilit, problem, 5. (I)GI, intro
durrd 1y S,•n. Edward \V. Bruin,, -
would authorize crra.
lion of a hgr• of lax swing:
account called all individual Loll,
int: amount.
'Phe: individual housint( ❑rrmud
would Ix• slalilar to Ihr iudividu;d
retinnnrnt an»ung:urthorizcd by the
197.1 pvnsinn reform lane. A lalenlial
1101111• buyer could dol Klsit up In
$2,500 annually, fur a t gal of $10,-
000, lo) build equity for a down pay-
ment. Income drlwsiled would ho
exempt from federal umition, as
would interest earned.
Opposition from labor
Roth the gnduatcd mortgage and
housing account conmpis meet with
business approval. But Inl.,or orCn-
nilnlions Imvc deep reservations, do -
spite high aorto Pig) oleo) iu the run
All"A ou ill,lu:.trv.
Ilrnl;y 11, Srhorhirr, drove)”; of
urksu :df'm, fur III,- ANI. CIO, .;:p•.
that IIIc AP-CI0 uppwvs I; taut a:drd
papun•ntr: Iw•cnnr the les It lvnuld
Ix• :.i;;nifir:udly higher final illlelv;l
pan into L: (.rrr Ihr life of lit.• luau.
A ko, he `iys, line octal institutions
would lend to m;d„• loans only to,
hnrruwrr; v.fill rsreplinnalh' gond
uullunks fur hinh,•r inrunns.
Thr
AFL-CIO u'rs in the iodi
victual hou.iu:; n mulit a pnir-ntial
for hillion; of dollars in Llx lush b)
file '1'rr.uury :mel III,- "crc:diun of
nnothrr very cu,tiv lax loophole to
bons, it junwi k the veli lo -do.”
Wrong; emphi,, Is aL I1iJVr
\\'hlln donges in Ihr FIIA :Ind
uillrr federal nlor Ue,ge pro:inm.s will
:girl the yuunq family in the nulrkt•I
for a home, there is glowing doubt in
the minds of Innny thud enough i:; h0,.
ing done in ilial iegaid. Also), there
is a frclin that I -IUD, with ils cul-
phnsis un Ihu urnlral sections of
cities, may IK' aiuliug in )h0, wrung;
direction.
]rational A,�wiation of Ifouw
Builders 1'r,r•ident Arquilla says:
"Secretuv I11n'is bus indiaalvd Fhc
will six -rd her lime, on urian o! -
habilitation. I think if she docs Abe
will miss the, bigl!er pmhlem. I don't
In 191). n':u^.1 '.'lows. 44.0 pcleeal Cl U. S. lenihes could Poor;
n l"C•a•npn 0,y: e•riStinp how;o Only S( pclernl could 1,,0 yn:•.
NATION'N nl'S1\E65 • SEPTI'MBEII 1577
'hint: we cm Ian into the iunrr cure
of til i, In rldulhililalc. \vv uInet
11;11'1 :d Ihr outer circ.+ :uul unrlt
olw:u'd. And cities; Inu.a pnwidv Ilio
inft u.huclure to ko,•p Ihr r. !rdlilil 1.
lion vi:ILlr.•'
idow .h0, Leu bite has ;frown
An ill un'lnnl slr I luwa nl n,ahiu�
it ran wr I - )I. familie6 will) ak( ngr in-
rnuu•. 1n buy housin^ uaadd I,— lu do
aorlh i ng_._11 it the LIN _hill, ill, v
Llrr, NaGunal Association of li,_,uw
lhlilder..s economist. Sumichr.e_I .clys.
Ile paints nal tI!;1? G4)'c1:1u;t:LLii.
I:Ihitt • uu incrcasln •Iv Lir,rr_h_, rn of
peraunnl inrulnr_
Tn 19531 ilc nnft_::, 11,J,crrcilt, of
US sltrnding w•a_ hy_A•drral, nb,le,
and lut-n1_Rnvorntnenis. In 197:, fhil,
Aire of _Ihr g;vju rl_)_nl_ni;rd lu .18__
g' -m-st.
'Vo nl:d,c hi:: point, Mr. tiumichra:I
lisb; Ilu-se menace:: in it,.- hen Itv-
;ule:o,•udiul: in 1975:
• Slnh: inrunic taxes - up 1,23:1
prr'et•nl.
• Federal inrnnn• taxes- up :30:1
porcvnt.
• Social Security lax, —up
prlcrnl.
• i?r-nl -st:dv faxes- up 3.,1 pvr-
evul.
Still fm'ther evidence of govern.
nn•nf gn•ndiul, lain rrsullinl; infla.
f inn:
Mnrlgarr inlerc.st pnyuu•r1t; —
up 497 ptro-ol.
• Nh ilituge payments --up :322
prrcrnl.
• Iiaz;od insurance—up 226 per -
rent.
• Utility cosh:—up 199 p,:rcent,
Income vs, housing priced
During the .mole lime period, tho
test of if new house inrrrrnsed 197
perevnl while gross fiunlly lnnnnc
incl ,ed )VI percent.
I My n be )Irv. A1r_Sumichr -1 ti v ,,
Inure Ani riumti 0iould b. ;,M., lo)
allulrl 1 ala•:�runu la.crasr lncurue.
I);n pr{•t� gill 61111 U>au t I h ,hr.
ri,o In hru. utl,L,net 14, tdd 1 .....
CN f
I'll.: plan truth ry Ilial th y , ul,_
put p,} fat,_ 1 hnu , \ I,v' P u
Oflut)(7Supcltl hmkud n I hm
AtLv uu pol'kg l Ihr re rn 1 1 nua h
tuff lo—Pull.. flit .1 lit I'm
iw nl
lit n d:ry Ill'.10 ne owl
rlllgl Ill:_ liul:c., �lcrultu.l.l lwc;cr
and di;; d,•r per iuuu
lu ur I,r6,
"It is fnir to :aq• thud wo have at-
mn:;l reached the: linlil of wh:d faro.
ilies c:nl earl acute for housing." I. 1
>30
NARROWING OF THE MARKET
FOR EXISTING HOUSES, 1970-1976
45
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•.
, .• 41„1. +.r.. 'i'•�
.___. ____
(•e r4enl a I U 't. �.
_.. ____.__
$38,180
40%
- .S•'fam,lloa'•`- ..PyJ�.
e51e la odord median-plicaC c
1
ylls,lndtiousc6vrF f' vr.ray:>`
'!1, .� '.1
135.330
38%
0
354:.
'`
rY
;ra s3xlw3
a
`to
�
tri,
rJ.P t •,, yN r � +,1 el. aY
rr 1
'2�.
)r.
7r `
2211920.T�
5Ir
30%
_
226,710 ( -I ie
C.•fi+�
/�
at0 til'i f'F.k �'��
ear•
N ��y
_-.'s.
251-
n
1770 1511 Yat 181.3 1974
1975
197(,
rll"r.n
•'. ('ei n A,..rl �n ., all ♦ •rf. en,•r.,•,
In 191). n':u^.1 '.'lows. 44.0 pcleeal Cl U. S. lenihes could Poor;
n l"C•a•npn 0,y: e•riStinp how;o Only S( pclernl could 1,,0 yn:•.
NATION'N nl'S1\E65 • SEPTI'MBEII 1577
'hint: we cm Ian into the iunrr cure
of til i, In rldulhililalc. \vv uInet
11;11'1 :d Ihr outer circ.+ :uul unrlt
olw:u'd. And cities; Inu.a pnwidv Ilio
inft u.huclure to ko,•p Ihr r. !rdlilil 1.
lion vi:ILlr.•'
idow .h0, Leu bite has ;frown
An ill un'lnnl slr I luwa nl n,ahiu�
it ran wr I - )I. familie6 will) ak( ngr in-
rnuu•. 1n buy housin^ uaadd I,— lu do
aorlh i ng_._11 it the LIN _hill, ill, v
Llrr, NaGunal Association of li,_,uw
lhlilder..s economist. Sumichr.e_I .clys.
Ile paints nal tI!;1? G4)'c1:1u;t:LLii.
I:Ihitt • uu incrcasln •Iv Lir,rr_h_, rn of
peraunnl inrulnr_
Tn 19531 ilc nnft_::, 11,J,crrcilt, of
US sltrnding w•a_ hy_A•drral, nb,le,
and lut-n1_Rnvorntnenis. In 197:, fhil,
Aire of _Ihr g;vju rl_)_nl_ni;rd lu .18__
g' -m-st.
'Vo nl:d,c hi:: point, Mr. tiumichra:I
lisb; Ilu-se menace:: in it,.- hen Itv-
;ule:o,•udiul: in 1975:
• Slnh: inrunic taxes - up 1,23:1
prr'et•nl.
• Federal inrnnn• taxes- up :30:1
porcvnt.
• Social Security lax, —up
prlcrnl.
• i?r-nl -st:dv faxes- up 3.,1 pvr-
evul.
Still fm'ther evidence of govern.
nn•nf gn•ndiul, lain rrsullinl; infla.
f inn:
Mnrlgarr inlerc.st pnyuu•r1t; —
up 497 ptro-ol.
• Nh ilituge payments --up :322
prrcrnl.
• Iiaz;od insurance—up 226 per -
rent.
• Utility cosh:—up 199 p,:rcent,
Income vs, housing priced
During the .mole lime period, tho
test of if new house inrrrrnsed 197
perevnl while gross fiunlly lnnnnc
incl ,ed )VI percent.
I My n be )Irv. A1r_Sumichr -1 ti v ,,
Inure Ani riumti 0iould b. ;,M., lo)
allulrl 1 ala•:�runu la.crasr lncurue.
I);n pr{•t� gill 61111 U>au t I h ,hr.
ri,o In hru. utl,L,net 14, tdd 1 .....
CN f
I'll.: plan truth ry Ilial th y , ul,_
put p,} fat,_ 1 hnu , \ I,v' P u
Oflut)(7Supcltl hmkud n I hm
AtLv uu pol'kg l Ihr re rn 1 1 nua h
tuff lo—Pull.. flit .1 lit I'm
iw nl
lit n d:ry Ill'.10 ne owl
rlllgl Ill:_ liul:c., �lcrultu.l.l lwc;cr
and di;; d,•r per iuuu
lu ur I,r6,
"It is fnir to :aq• thud wo have at-
mn:;l reached the: linlil of wh:d faro.
ilies c:nl earl acute for housing." I. 1
>30
"DataCenter for
Sheet Retarded Citizens
Project Goal: To stimulate the development of a new architecturally barrier free
center for retarded adult residents which will provide training in
daily living skills, socialization, prevocational and vocational
skills.
Project Description: The City of Iowa City will enter into a contract with Johnson
County Association for Retarded Citizens utilizing $50,000 in
Community Development Block Grant funds for a purchase of services
for handicapped residents of the community. The funds will be
expended this fall for this purpose.
Population to be Served: 25 to 30 retarded adults will participate in the educational
programs provided by the Nelson Center. Architecturally accessible
meeting rooms will be available to all handicapped residents of Iowa
City for meetings and social activities.
Relationship toOther Cit Pro rams: The Recreation Center provides recreational
actzvit es, or handicapped children of Iowa City, as part of their
Special Population's Involvement (SPI) program, but has no other
social or educational programs planned solely for handicapped
residents. The City has implemented an architectural barrier removal
program to make city owned structures accessible to the physically
handicapped.
Environmental Impact: An environmental review record has been developed evaluating
the physical, social, and aesthetic impact of this project. No
significant adverse impacts were identified. This report is available
for public review at the Public Library and the City Clerk's Office
in the Iowa City Civic Center.
Current and Pro•ected Costs: The city plans to contract for the services provided
by tie Nelson Center at a cost of $50,000. This is expected to be a
one time cost and not precedent setting.
Other Comments: This project was approved by the City Council as part of the 3rd
year CDBG program. The Johnson County Association for Retarded
Citizens originally presented the proposal to the Committee on
Community Needs and they subsequently endorsed the program.
:379/
MitCity of Iowa C
A ORAN V M
DATE: September 23, 1977
7O:
FROM: City Clerk
RE: Election
On September 23, 1977, Glenn Roberts, 21 Ashwood Drive,
obtained nomination papers for Councilman. His telephone
number is 338-8619.
378.2
0
0
HIGHWAY DIVISION
800 LINCOLN WAY AMES. IOWA 50010 515296.1101
September 16, 1977
AEF. NO.
Washington County
F-1-4(11)--20-92
Abbie Stolfus
City Clerk
City Hall
Iowa City, Iowa 52240
Dear Mr. Stolfus:
Enclosed are maps of the proposed improvement of Iowa
Highway 1 in Washington County, Iowa. Also enclosed is a
notice of corridor -design public hearing. I would like to
have you file the maps so that interested citizens may
examine the proposed project prior to the corridor -design
public hearing.
The corridor -design public hearing on Project Number
F-1-4(11)--20-92 will be held on Thursday, October 20, 1977,
at 7:00 p.m. in the Kalona Community Hall which is located
at the intersection of Dave and 6th in Kalona, Iowa.
Yours very truly,
NEIL M. VOLMER
Project Development Engineer
'[//R�.,m
Larry R. Heintz
Access and Hearing Supervisor
jmv
Enclosures
cc: Robert F. Percival
District Engineer
Highway Division
Iowa Department of Transportation
F70
SEPIoL01917
ABBIE STOLFUS
COMMISSIONERS CITY CLERK
BARBARA DUNN DONALD K. GARDNER STEPHEN GARST WILLIAM F. M[GRATH ROBERT R. RIGLER L. STANLEY SCHOELERMAN ALLAN THOMS
De; Moines Ceder Rapids Coon Rapids Melrose New Hampton Spence' D"In'"e
1717031
NOTICE OF CORRIDOR -DESIGN PUBLIC HEARING
PROJECT DATE OF
NUMBER HEARING
MEETING PUBLISHED
LOCATION
Washington 10-20-77
Kalona Evening Journal
Project F-1-4(11)--20-92 begins on
County
Community Washington, IA
Iowa 1 approximately one mile south
7:00 P.M.
Hall 09-20-77
of Kalona and continues northerly on
F-1-4(11)
10-13-77
existing alignment for a distance of
Kalona,
approximately 1000 feet. The improve -
Iowa Press -Citizen
ment will involve reconstruction of
Iowa City, IA
the existing 24 ft. wide roadway to
09-20-77
a 24 ft. wide roadway with 10 ft.
•
10-13-77
wide shoulders. The existing 325' x
26' steel truss bridge over the
Kalona News
English River will be replaced with
Kalona, IA
a 344'-6" x 44' prestressed concrete
09-22-77
bridge. The local road which inter -
10 -13-77
sects Iowa 1 within the project limits
will be relocated approximately 400'
south of its existing intersection
with Iowa 1 and reconstructed for a
distance of approximately 800 £t. to
match the proposed Iowa 1 gradeline.
Total length of the project is approxi-
mately 1,000 ft.
The right of way acquisition
and construction schedules
for this proposed project will be discussed
• at the public hearing.
Pertinent information developed
by the Iowa Department of
Transportation in the planning and design
of this project, as well
as any correspondence received
from any governmental agencies or public
advisory groups interested
in or affected by the proposed
highway development will be available
for public inspection at
the hearing and from Mr. Robert
Percival, District Engineer, Iowa Depart-
ment of Transportation,
District Office No. 5, P.O. Box
587, Fairfield, Iowa 52566.
Provisions will be made for the submission of written statements and other exhibits in place of
or in addition to oral statements made at the public hearing. Statements or exhibits will also
be accepted after the public hearing by delivering said statements or exhibits with respect to the
project to Office of Development Support, Iowa Department of Transportation, Highway Division,
Ames, Iowa 50010. The final date for receipt of these statements or exhibits will be 12:00 noon,
October 31, 1977.
Copies of the project map are on display in the office of the City Clerk in Kalona, Iowa City, and
Washington. Persons who want to make a formal presentation should contact the Office of Development
Support, Iowa Department of Transportation, Highway Division, Ames, Iowa 50010.
.1,}y���'1 {
•t. diff y.
r •... -
Il
'
�I �,. j •. v
4 i i• !
f{
The proposed project
replacement over the
involves the bridge I
English River and i
reconstruction of approximately
1000 ft. of
pavement on Iowa 1,
approximately 1 mile
south of Kalona in
Washington County.
R-8 W
R-7 W
TO
PUBLIC
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PROJECT
•L
1T V E R•
....
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SEP2 01977
ABBIE STOLFUS
CITY CLERK
•
•
,•c� '�•n•.1 L� s .4 16 \Ir dr \• \Ir 16 d. .Ir dr ,Ir .Ir \Ir ,Ir •b ,t. .Ir ,IrIr -0r -0f
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THE PROGRAM
a.•
THE IOWA CITY PUBLIC LIBRARY
1:30 P.M, -
F.W. Kent Photograph
e ells 5
Collection - (Slide slow
THIS WAS IOWA CITY
commentary --scenes of
early Iowa City) (1 hour)
A multi -media event in celebration of the e ,
2:45 P.M. -
Iowa City Centennial Film
annual resumption of Sunday opening hours
Made in 1939, this records
(October -May -- 1-5 p.m.)
our 100th Anniversary
SUNDAY, OCTOBER 2, 1977 - 1:30 PIM.
Celebration (20 minutes)
PUBLIC LIBRARY AUDITORIUM y'
COLLEGE AND LINN STREETS
'
Love Affair With A City:--
A film depicting a day in
IOWA CITY
the life of Iowa City.
A +h A +h +j, iI, A, 'j, ip aj. 'j. 'j, 'j,
37By
THE PROGRAM
1:30 P.M, -
F.W. Kent Photograph
Collection - (Slide slow
commentary --scenes of
early Iowa City) (1 hour)
2:45 P.M. -
Iowa City Centennial Film
F
Made in 1939, this records
our 100th Anniversary
t
Celebration (20 minutes)
,
+
r.
3:15 PIM, -
Love Affair With A City:--
A film depicting a day in
;.
the life of Iowa City.
;.
(Produced by the Iowa City
Chamber of Commerce and the
_
University of Iowa Audio-
visual Department.
(13 1/2 minutes)
+
The above media
presentations may be borrowed free
for home or group
showing through the Iowa City
Public Library.
"Love Affair With a City" is
available only
from the Iowa City Chamber of Comm-
erce.
.................
�l'i: i. � �..._Y...I...1..._.1._-.I...1...1-.I-.I..I.......nl...l..l. �-.I.�..r....'...1.. 4..4u1..i1..1...1-.I...I. r'.. r. �. i' '..' ......
A +h A +h +j, iI, A, 'j, ip aj. 'j. 'j, 'j,
37By
>IC
PL
IOWA CITY PUBLIC LIBRARY
307 East College Street
Iowa City, Iowa 52240
Non HoGt Ory
U. S Posula
PAID
IOWA CITY, IOWA
Pama No. 113
I _ - • •
Por immediate release, Sept. 23, 1977
Statement by Harry Baan, Coordinator, Citizena' Sousing Center
During the lest two weeks the ClLy Staff 11,18 issued two opinions which would
,�26,2,r- 23
seem to dampen our hopes to improve housing conditions in Iowa City through our own
efforts. however, both Mr. Kucharzak's budget estimate and Mr. Hayek's legal opinion
are substantially incorrect and misleading. What follows is intended as a criticism
of the staff's opinions and their approach rather than of the staff members them-
selves.
We see the initiative process as proof that people can work together to improve
the conditions of their daily lives without depending on goverment bureaucracy for
technical assistance. We spent over six months researching and writing the ordinance
and hundreds of people have been involved in the effort to get it passed. It goes
against the entire spirit of our effort if people are put off by misleading headlines
referring to the mistaken conclusions of one-sided, technical reports.
We are confident that the voters will look at both sides of the issues and will
judge the Tenant/Landlord Ordinance on its merits.
37$5
Statement by Mark Deatherage, Tenants United for Action, Sept. 23, 1977
A reply to Mr. Kucharzak's budget estlinate.
We feel that Mr. Kucharzak's estimate of $74,000 in administrative cost for the
Tenant/Landlord Ordinance is higher than the costs would actually have to be. We
agree with Mr. Kucharzak, obviously, that the benefits of the ordinance would be
worth this cost, but we feel that, as director of the administering agency, he has
presented a maximum budget, not a reasonable one. We also feel that some of the
items requested are not due to the ordinance at all, but are things that the Hbusing
and Inspection Service has wanted in the past and would like to have now, regardless
of the ordinance.
Kucharzak's estimated need for 2 more housing inspectors is too high, for two
reasons:
1. This expenditure would be for enforcing the rent Withholding part of the
ordinance which probably won't be used very often, again for two reasons. One rea-
son is that tenants will prefer to use the tenant -initiated remedies such as repair
and deduct and rent abatement because they will bring quicker results than the City-
adminiseered remedies. Most tenants will prefer to negotiate directly with their
landlords when they can do so without fear of retaliation and with a reasonable hope
of prompt and adequate response. The second reason is that no landlord will delay
repairs long enough for rent withholding to come into effect if he or she can help
it. The landlord would, under rent withholding, be deprived of all operating income
while still being obligated to make the ordered repairs and pay monthly operating
costs. Mr. Kucharzak entirely ignores tenant -initiated remedies and the deterrent
effect of rent withholding and receivership.
2. At most one new inspector should be needed if Kucharzak's projections of
increased work load are correct. He says there will be about 20-50 complaints per
month due to the ordinance. One inspector can handle 2-6 new complaints per day.
Taking the averages of these estimates we find that 35 complaints per month at 4
complaints per day would be less than 9 days work per month. This justifies , of an
inspector not 2. This should also cut the clerical requirement by if. Thus
kucharzak's estimate of $9000 should be at most $16,000 fur the rent withholding
program.
The $14,00 for an additional construction specialist should not be needed at
all. The present construction specialist is not working up to full capacity now be-
cause there aren't enough homes in the housing rehab program.
The receivership remedy will hardly ever be used because it is unlikely that a
landlord would delay repairs long enough, over a year with delays caused by appeals,
to allow the City to take over his duty to repair. That would deprive the landlord
of operating income for the entire period. At most we would expect a test case.
According to Mr. Kucharzak the construction specialist presently spends about 20-30
hours per case. The main duties of the construction specialist will always be con-
fined to the housing rehab program.
The last part of the budget estimate, General Support at $27,000, includes many
long-standing requests of the department. The $11,000 for office space would be needed
because the Civic Center is already overcrowded. The $5,500 for a car was requested
last year. Why does one phone cost the City $2,280?
Overall Mr. Kurchazak's estimate seems to be excessive by about $45,000. Admin-
istrative costs of the ordinance should be about $25,000 to $30,000.
Legalities of the Proposed Tenant - Landlord Ordinance
1. Mr. Hayek's Approach
First, we would like to discuss the approach John Hayek has taken in
assessing the validity of the Proposed Ordinance. He takes each provision and
looks for every possible argument against it and assumes the courts will take
the most negative view of each provision. This is what a landlord's attorney
would hope for in a law suit under this ordinance. fie never makes any
positive argument for any provision in the ordinance.
We feel the way to analyze an ordinance under Home Rule is to view the
entire ordinance and determine whether its provisions are reasonably written
in order to carry out its purpose. As mentioned before a great many people
worked a long time to insure that thin ordinance woul carry out the purpose
of enforcing the housing code. Luring that time we were very much aware of
the need to conform to Home Rule. We contacted experts in the field and we
have talked to some of the drafters of the Iowa Home Rule Statute. We feel
an objective reader. of the Ordinance can find that it will carry out the
purpose of enforcing the minimum housing standards; something the City has
been obligated to do for 58 years and has failed to do.
2. Mr. Hayek's Major Error
There are 15 sections of. the Ordinance, 2 are procedural, of the 13
remaining sections John Hayek dismisses 4 (sections 7-10) because of a
reading error. Hayek says "under section 9.31.7, it appears that a dwelling
may be certified for rent withholding where the operator has engaged in
pratices in violation of the ordinance," that is, practices, other than
housing code violations. This is mistaken! Section 9.31.7 is an amendment
to Capter 9.30.9d of the present housing code. The reference to "this chapter"
in this revised version of 9.30.9d obviously refers to the housing code and
not to the Tenant -landlord Ordinance. Therefore the city -administered rent
withholding and receivership provisions of the Tenant -Landlord Ordinance also
0
-2-
0
apply exclusively to violations of the housing code. The objections to sections
7 through 10 of the Ordinance are absolutely incorrect. The opinion also fails
to point out that the supposed error in these chapters could have easily been
corrected by the Council.
In addition to the 4 sections above which have no problems if correctly read
there are 2 sections which are not criticized in any way by the opinion (11 6 14)
There are five sections which are only criticized in part, The criticism of
these chapters is based on the assumption that the City cannot be involved in
passing laws dealing with non-compliance with leases. In making this criticism
he fails to recognize that part of the proposed Housing and Maintenance Code and
much of housin code enforcement in general goes indirectly to compliance with
leases. Housing and Maintenance Code 9.30.8A: "every supplied facility,piece of
equipment or utility shall be maintained in satisfactory working order." The
greatest part of non-compliance with leases refers to keeping, things In working
order and up to code. The City already recognizes that just keepin items specified
in the Code in working order is not enough. We have been so bold as to say those
items must be specified in the lease (9.31.8) and yet the City Attorney says that
is not related to Housing Code Enforcement.
In any event the major criticism in the report comes down to sections 2 6 3;
two sections out of 13 which John Hayek deems would be completely thrown out of
court, because he does not see a relationship between regulating leases and damage
deposits and enforcing the Housing Code. Those people who work with tenant problems
every day do understand that relationship. When tenants come in to Protective
Association for Tenants or Tenants United for Action and are advised to make a
complaint to the Housing Inspector their most common reasons are:
1. "I don't have a lease."
2. "Ihave a lease with provisions saying the Landlord is not liable for
for housing code violations and I have to pay his attorney's fees."
3. "Thu Landlord has my damage deposit and I can't prove the damage was
the Landlord's fault because I didn't get a checklist of the conditions."
The greater the deposit the greater the fear. Those are the reasons for section 2
and section 3.
Mr. Hayek points out that he is a Landlord in his usual frank manner. We do
not believe his opinion is written in any way to protect his own interest -- he
is an honorable man. However, his failure to understand the intimidation and fear
which a tenant without a lease and owed a damage deposit has when a place is not
kept up to decent living standards may arise from the fact that his experience is
on the other side and that he would never consider the type of scions which
unscrupulous Landlords take all the time.
The lease provisions in the TLO will help tenants and the City enforce the
housing code. As it happens they will also help tenants to enforce their leases,
but that does not mean that the provisions don't help enforce the housing code.
3. Severablility
Because of his mistaken reading of 4 sections of the ordinance and his partial
criticism of 5 sections Mr Hayek assumes that the Court will throw out the whole
ordinance. Even if he were correct about sections 263 we think the court would
only refuse to enforce those sections which would mean the rest of the ordinance
could stand.
4. 413.9 of the Iowa Code
Even without Home Rule we feel the City has the power under section 9 of
Chapter 413 Housing Law passed in 1919. I will let you read that section and
leave it upto you to decide whether that is enabling legislation for this type
of ordinance which pertains to the housing of the people.
§ 413.8 cin, GOVERNMENT
and wader connections shall be decided by the health officer or such
other official as the board of health may direct.
Amended by Acts I972 (til G.A.) ch. 1088, § 199; Acts 1974 (65 G.A.)
ch. 109G, §§ 29, 30.
Historical Note
Derivation: Cocks 103:1, 1035, 1031, 1937, 1021, {
Codes 11175, 1073, 1971, Ilk:(!, 11162. 6:134.
]055, W.A. 1950, 11046, t 413.8. Acts 1910 (38 G.A.) ch. 123.17.
4 3.9 Minimum requirements—power of cities
✓_ 1'I provisions of this chapter shall be held to be the minimum re-
quirements adopted for the protection of health, welfare, and safety
of the community. Nothing herein contained shall be deemed to in-
validate existing ordinances or regulations of any city or county im-
posing requirements higher than the minimum requirements laid
down in this chapter relative to light, ventilation, sanitation, fire pre-
vention, egress, occupancy, maintenance and uses for dwellings; nor
1•• be deemed to prevent any city subject to this chapter from enacting
and putting in force front time to time ordinances and regulations
imposing a uircments hi nccr than the minimun irements laid
down in this chapter; nor sha anythingherein_contained be deemed
to prevcnt such cities from prescribing for the enforcement of such
ordinances and regulations, remedies and penalties similar or addi-
_� fl no a1.4o those prescribed herein. Every city subject to this chapter
is empowered to enact such ordinances and regulations and to pre-
scribe for their enforcement; penact
pod to such other ordinances per -
3 ( taming to the housing of the people, not in conflict with the�rovi-
�sions of this chapter, as shall be deemed udvisnble try the city council.
No ordnance, regulation, ruling,'or decision of any municipal body,
officer, or authority shall repeal, amend, modify, or dispense with
any of the said minimum requirements laid down in this chapter, ex-
cept as specifically provided herein.
Amended by Acts 1963 (60 G.A.) ch. 254, § 7; Acts 1972 (64 G.A.) ch.
1089, § 109; Acta 1974 (65 C,.A.) ch. 109G, §§ 29, 30.
Historical Note
Derivation:
Codes 1975, 1973, 1971, 1906, 106.2, The 1967 amendment added "or coup.
193% 3f),14,3950,3940, 1 41::.0. ty" to the accond writeuce.
Codes 393D, 1035, 1081, 1027, 1924, 1
6335.
Acts 1919 (38 D.A.) ch. 123, 1 8.
366
WILL J. HAYEK
JOHN W. HAYEK
C. PETER HAYEK
C. JOSEPH HOLLAND
HAYEK, HAYEK & HAYEK
ATTORNEYS AT LAW
IK, EAST WANHINOTON STREET
IOWA CITY. IOWA 32240
September 20, 1977
The Honorable Mayor and
City Council of Iowa City
Civic Center
Iowa City, Iowa 52240
Re: Landlord - Tenant Ordinance
Mayor and Council Members:
• \ 7
AREA COOK 3I0
337-9606
E 0 SEP2 01977
ABBIE STOLFUS
CITY CLERK
At ,your request the Legal Department of the City of Iowa City has
made an extensive review of the landlord -tenant ordinance proposed
through the initiative procedures of the Iowa City Charter, This letter
along with Mr. Tony Kushnir's memorandum concerning the ordinance
with attached documents constitutes our report on the ordinance. For
the reasons discussed below I believe that there are serious legal
problems with the proposed ordinance and that it is unlikely that the
ordinance would be upheld by the Iowa courts in a court case testing its
legality.
Before discussing the merits of the issue before us, I would like
to briefly mention some preliminary matters. First of all, the Legal
Department has approached the problem of analyzing this ordinance very
much aware of the unique problems that the initiative procedure in the
City Charter poses, We are aware, for instance, that this ordinance
may well be adopted at a referendum and become the law of Iowa City
regardless of the conclusions and opinions contained in this report. A
report, such as this one, raising several questions concerning the
legality of the ordinance would certainly serve to make advocacy of
legality in a later test case difficult for myself and for Mr. Kushnir,
In order to avoid this difficulty we could refuse to issue a legal opinion
at this time or else couch the opinion in very vague and innocuous
generalities so that it could not be used against us later. In my opinion
to follow such a course would be a disservice to the City Council and to
the community and would be to shirk and avoid the responsibilities that
we have as city attorneys. I therefore believe that the responsible course
of action is to issue this report clearly setting forth our views as to the
ordinance and to deal with the problem discussed above if and when it
arises as best we can.
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The Honorable Mayor and
City Council of Iowa City - 2 - September 20, 1977
Inevitably when an ordinance of this sort is being discussed, the
question of bias or prejudice of the person commenting on the matter
arises. I feel that I ought to indicate to the City Council that I do have
ownership interests in rentul property and am therefore a landlord. I
would also point out that Mr. Kushnir leases rental property and is a
tenant. Further of course there are members of the City Council who
are landlords and there are members who are tenants. In working on this
report Mr. Kushnir and I have done our best to be as objective as possible.
The merits of this type of legislation have been considered by the
Council before. Indeed the Legal Department of the City has previously
had occasion to report on the legality of such legislation. On March 28,
1975, a memorandum was issued by the Legal Department stating that in
our view under the home rule powers of municipalities in Iowa the City has
the power to enact certain restrictions and regulations in the landlord -
tenant area but that the City does not have the power to impose rent con-
trols or regulate the type of lease agreements to be used by landlords and
tenants. We indicated that we felt the City does have the power to provide
for rent withholding where the landlord fails to maintain the premises as
required by housing codes and ordinances and also, as an adjunct to the
authority to adopt housing codes and regulations, the Council has the power
to prohibit retaliatory evictions. In March of this year, in a letter to Mr.
Harry Baum, one of the proponents of the landlord -tenant ordinance, Mr.
Kushnir expressed considerable reservations concerning a previous draft
of the ordinance and discussed in great detail the legal problems that he
foresaw with the ordinance. Copies of the memo of March 28, 1975, and
the letter to Mr. Baum are a part of the materials attached to this report.
Without repeating the detailed analysis contained in Mr. Kushnir's
memorandum the critical question with respect to the ordinance is whether
or not the City has the authority to adopt it. Cities in Iowa are granted
broad home rule powers by the Iowa Constitution. Those powers are, how-
ever, not without limit. Section 364. 1 of the 1977 Code of Iowa is the basic
statute setting forth the home rule powers of municipalities in Iowa. That
section of the Code of Iowa reads as follows:
A city may, except as expressly limited by the
Constitution, and if not inconsistent with the
laws of the general assembly, exercise any
power and perform any function it deems
appropriate to protect and preserve the rights,
privileges, and property of the city or of its
The Honorable Mayor and
City Council o1' Iowa City - 3 - Septcrnher 20, 1977
residents, and to preserve and improve the
peace, sarety, health, welrare, comfort, and
convenience of its residents. This grant of
home rule powers does not include the power
to enact private or civil law governing civil
relationships, except as incident to an exercise
of an independent LiLy power. I Emphasis added
The question then becomes one of interpreting the meaning of this statute
and particularly the limiting provisions of the last sentence underlined
above.
As Mr. Kushnir points out, the appellate courts in those states
which have the same or very similar limiting language in their home rule
statutes have held rent control and similar restrictions to be in violation
of the limitations on the grant of home rule powers and in excess of the
authority granted to cities in those states. We believe it likely that the
Supreme Court of Iowa would reach a similar conclusion.
Cities in Iowa have the authority to adopt and enforce minimum
housing nodes, building codes and the like. As incident to that authority
cities can, I believe, adopt laws and regulations which, though they may
interfere with private contractual relationships, are designed to help
enforce the housing or building codes. For example, cities could pro-
hibit enforcement of terms of a rental agreement wherein a tenant would
agree to not make any complaints concerning violations of the codes or
ordinances, cities could adopt ordinances prohibiting evictions of tenants
who have complained to the authorities concerning code violations, and,
as we indicated in March of 1975, we believe that cities could adopt
ordinances providing for rent withholding for structures where there
have been serious code violations, the rent withholding being basically
a self-help device to enforce the housing code. however, I do not
believe that the City can pass laws which regulate general terms of a
rental agreement such as terms concerning unconscionability or fair-
ness or require written leases or place limits on damage deposits or
prepaid rent or require that leases be assignable, These regulations,
desirable though they may be from a tenant's standpoint, can hardly be
said, it seems to me, to be incident to or related to the authority of the
City to adopt and enforce minimum housing and building codes. Rather
such regulations are, I believe, an attempt to adopt private civil law
governing civil relationships and contracts, an area reserved to the
state legislature by Section 364. 1 of the Code of Iowa.
The honorable Mayor and
City Council of Iowa City - 4 - September 20, 1977
Mr, Kushnir's memorandum lists the specific sections of the
ordinance which we believe to he in excess of the City's authority.
Generally these sections attempt to dirtale the terms of the contractual
relationship between landlord and tenant in ways which are not, in our
opinion, incident to the authority of the City to enforce its housing codes.
The ordinance in Section 9. 31.9 provides for rent withholding and
in Section 9. 31, 10 for receivership of substandard housing where the
landlord refuses to make necessary repairs. Properly drafted rent with-
holding and receivership ordinances limited to enforcement of the City
housing codes would be, we believe, within the authority of the City to
adopt. However, it does not appear to us that the rent withholding and
receivership provisions of the proposed ordinance are necessarily so
limited. For example, under Section 9. 31, 7 it appears that a dwelling
may be certified for rent withholding where the operator has engaged in
practices in violation of the ordinance. Presumably those practices would
include practices which, as discussed above, we believe the City does not
have authority to prohibit. In like manner the receivership section of the
ordinance does not appear to clearly be limited to enforcement of the
housing and building codes. Also the termination and repair and deduct
tenant remedies contained in Section 9..31, G, though perhaps within the
authority of the City to adopt in proper form, do not appear to be clearly
limited to enforcement of the housing codes of the City. I doubt, for
example, the authority of the City to allow tenant self-help where the
landlord has failed to provide equipment or services agreed to in the
lease but not required by the housing codes. Tenants already have a
cause of action under existing law against the landlord for any such
breach of contract. It is difficult to see the City's interest in such
contractual disputes.
The proposed ordinance does contain a severability section.
Section 9..31. 15. Under this section the courts could strike down many
of the provisions of this ordinance, along the lines discussed above,
while allowing other provisions to remain in force. However, I believe
it is probably more likely that due to the considerable difficulties with
the ordinance and the fart that so many sections of it appear to have
legal problems a court might very well invalidate the entire ordinance
rather than leaving a few sections still standing whose substance is
materially different than that of the original statute,
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Rila r. inl,..t•1is1
— in: John Hayek, City Attorney
FROM: Tony Kushnir, Asst. City Attorney
RF: Proposed Landlord -Tenant Ordinance
FACTS
On Tuesday, August 16, 1977, the City Council accepted the City Clerk's
certification that the petitions gathered in support of the initiative proposal
were sufficient. Acoordingly, pursuant to our home rule charter, the City
Council shall consider the proposal with respect to considering its enact -
mast.
ISSUES PRESENTED
As the proposal deals with the rights and obligations of landlords and
tenants and provides various remedies with respect to such relationships,
what are the City's powers with respect to enacting such a proposal?
CONCLUSION
The following sections or portions thereof would not likely be upheld
in Iowa as valid exercises of han= rule power: 9.31.1(B)(2)(b); 9.31.1(C);
9.31.1(D); 9.31.2(A)(B); 9.31.2(C)(2 - G); 9.31.2(D)(1 - 10_; 9.31.2(E);
9.31.2(F); 9.31.2(G); 9.31.2(11); 9.31.3(A) and (B); 9.31.4(B) and (C);
9.31.5(B) and (C); 9.31.6 with respect to any remedies for non-crnplianee with
rental agreements; 9.31.7 with respect to any references to the duties of the
Housing Inspector and the enforcement of rental agreements; 9.31.9 with respect
to rent withholding for non-ocnpliance with rental agreements; 9.31.10 with
respect to remedies for non-compliance of rental agreaTents; 9.31.12; 9.31.13.
My opinion is based on the fact that Iowa courts would most likely hold
the above sections to be invalid and contrary to the provisions of Chapter 364,
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Code of Iowa (1977) wherein the State Legislature limited the grant of home
Lule power so as noL to include the ability to enact private or civil law
governing civil. relationships except as incident to .ui exercise of an indepen-
dent city.power.
The following provisions, in my estimation, would be upheld in Iowa as
valid municipal exercises of power: 9.31.4(A); 9.31.5(A) as they relate to
non-compliance with the housing code; 9.31.6; 9.31.7; 9.31.9; 9.31.10; 9.31.11
and 9.31.14 in as they relate to the enforcement of the housing code.
DISCUSSION
Attached to this memo please find a ne orandum dated March 28, 1975, and
a copy of a letter to Mr. Barry Baum dated March 8, 1977. Both of these items
deal with home rule and the ability of a municipality in Iowa to enact ordi-
nances with regard to the landlord -tenant relationship. Both discuss in some
detail the powers of municipalities as established in the 1968 amendments to
the Iowa Constitution and in Chapter 364 of the Code of Iowa, 1977. In particu-
lar the discussion centers around the last sentence of section 364.1 which
states, "This grant of home rule powers does not include the power to enact
private or civil law governing civil relationships, except as incident to an
exercise of independent city power." Private law has been defined as .
all that part of the law which is administered between citizen and citizen, or
which is concerned with the definition, regulation, and enforcement of rights
in cases where both the person in whom the right inheres and the person upon
whom the obligation is incident are private individuals." Black's Law Dic-
tionary, 1359 (4th Edition, revised 1968). Private law generally includes
such fields as contract, tort, property, agency, corporation, and commercial
law. (Dyson, Ridding Hone Rule of the Local Affairs Problem, 12 Kansas Law
Peview, 367, 382; 1964.) To be sure, the Iowa Supreme Court has dealt with
various cases involving municipalities and the grant of hone rule. See Bechtel
V. City of Des Moines, 225 N.W.2d 326 (1975); Green v. City of Cascade, 231
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N.W.2d 882 (1975); S>n2son v. City Cedar Fails, 231 N.W. 2d 609 (1975)
but the Iowa Supreme Court has not had yet the opportunity to give its inter-
pretation on various terms as used in the home rule grant. For instance, the
Supreme Court has not yet interpreted the term "local affairs" (see Green v.
City of Cascade, supra) nor has it an opportunity to examine municipal actions
with respect to regulating private relationships. However, legal commentators
and judges in other jurisdictions have dealt with the issue. It seems that
all authorities agree that the limitation on private civil relationships imposes
considerable restraint with respect to municipal action in this area. The pro-
vision has been constitutionally adopted in only three states: in Massachusetts,
Louisiana and New Mexico and statutorially enacted in Iowa, Delaware, Georgia
and Montana. The provision has been judicially construed by the Supreme Judicial
Court of Massachusetts, which taking note of its language, ruled that absent
specific enabling legislation, a city could not enact a rent control ordinance
pursuant to its home rule authority. (See Marshal House, Inc, v. Rent Review
and Grievance Board, 357 Mass. 709, 216 N.E.2d 200 (1970). The California
Suprere Court in the recent case of Birkenfeld v. City of Berkeley, 130 Cal.Rptr.
965, 550 P.2d 1001 (1976) held that municipalities in California could rely
on their home rule grants to enact landlord -tenant regulations inclining rent
control regulations. However, the court did note that California cities enjoy
a much broader grant of police parer than Trost other jurisdictions. As an
examrple of a more restrictive grant, it cited the Marshal liouse case which, as
I pointed out in my previous memorandums and correspondence, involved a ham rule
grant that is very similar to Iowa's. The California Supreme Court went on to
state that the Ham rule grant in California was similar to such jurisdictions
as in New Jersey where the home rule grant states that it is a grant of "great-
est power of local self-government consistent with the constitution"; and a grant
of "broad general police posers to nunicipalities." See Ingananort v. Borough
of Fort Lee, 303 A.2d 298, 305 (1973).
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It is also interesting to note the case of City of Bloomington, Indiana,
et al. v. Louis A. Chuckney, et al., 331 N.E.2d 780 (1975). In that case the
Court had before it an ordinance which was entitled "An Act to Improve the
Quality of Housing in the City of Bloomington." The ordinance was directed
toward residential rental housing in Bloomington and the language of which was
taken a great part from the "Uniform Landlord and Tenant Relationship Act."
(The Uniform Residential Landlord and Tenant Act is a tmdel statute drafted
by the Conmissioners on Uniform State Laws and approved by the National Con-
ference of Crnmissioners on Uniform State Laws on August 10, 1972. It has been
enacted in some states and has been proposed before the Iowa Legislature this
past term.) The Court noted that Indiana law was that any Indiana municipality
may now "exercise any power or perforin any function necessary in the public
interest in the conduct of its municipal or internal affairs which is not
prohibited by the constitution of the United States" and which is not by
express provision denied by law. The Indiana legislature made it clear that
in absence of specific denials or preemption, the powers of cities are
limited only by the state and federal constitutions. Included in the liunita-
tions is the express provision that a city not enact laws governing private
or civil relationships except as incident to the exercise of an independent
municipal po.,+er.
As can be seen, the Indian hone rule grant is very similar to the Iowa
home rule grant in that it is a limited self-executing type subject to the
provision regarding civil relationships. The Court of Appeals of Indian held
that the ordinance before it governed the private relationships between the
landlord and tenant and further that it could not be upheld as a regulation
incident to the exercise of an independent municipal power. It held that many
terms of the ordinance, such as those which relate to terns which must be
included in every residential lease agreement, are wholly unrelated to city
housing and safety oodes and cannot be incident to the City's police powers
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in those areas. In essence the court follows the rationale as established
in the Marshal House case. The case takes on special significance because
as in the Bloomington Ordinance, major portions of the "Uniform Landlord and
Tenant Relationship Act" comprise the Initiative proposal. See sections 9.31.2,
9.31.3 and 9. 31. 5 (B) (C) , among others, which relate to the terms to be included
in residential lease agreements and the rights of each party therein.
Finally, certain courts such as the California and New Jersey courts
have held that the general welfare power is an independent police powez and
subsequently municipalities can enact regulations within their local jurisdic-
tions to secure the general welfare. Such courts as the New Jersey court have
held that the term "home rule" includes the pawer to legislate for the general
welfare when the local government finds there is sufficient local need. Again,
these cases can be distinguished from the Iowa law by the fact that there is
a much broader grant of home rule powers. In jurisdictions where such a limi-
tation as we have in Iowa pertaining to civil relationships exists, the term
"Public welfare" is not viewed as an independent municipal power. In effect,
such jurisdictions hold that it would be circuitous to say that an ordinance,
the principal objective of which is to regulate the relationships between the
landlord and tenant, is also merely incidental to the exercise of an indepen-
dent municipal power which is to regulate relationships between landlord and
tenants. In fact, because of the constraints discussed above, state one
South Dakota, which constitutionality adopted a limiting provision on private
legal relationships in 1962, abandoned it ten years later.
Thus it seems from a reading of the various home rule grants that the
specific terms used in each specific grant will have great consequences as to
how that grant is interpreted. Grants which are similar to Iowa's have not
been held to enable municipalities to enact ordinances which are "general
welfare" in nature, i.e., rent control, uniform landlord -tenant relationships
act, etc.
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'Phis is not to say that municipalities any not infringe upon the land-
lord -tenant relationship while enforcinq an independent municipal power. As
I've stated previously I believe a municipality may enact such ordinances as
rent abatement, rent withholding or the like to enforce its housing codes.
This concept was upheld in Marshal House, as well as in State ex rel Michalek
v. LeGrand, 253 N.W.2d 505 (1977), both cases involving rent withholding ordi-
nances and here rule grants. The terms of the ordinance which pertain to
putting eoonomic sanctions upon the landlord in order to enforce the housing
code are in my opinion a valid exercise of municipal power.
Additional Cc mnnts
Other potential problems regarding the Initiative proposal center
around the limitation upon Iowa municipalities and their powers as expressed
in the home rule amendment wherein municipalities are granted hone rule
power "not inconsistent with the laws of the general assembly." Section
364.2 of the Code of Iowa states: "An exercise of city power is not inoon-
sistent with a state law unless it is irreconcilable with the state law."
Sections 9.31.2(D) and (G) require rental agreements between the landlord
and tenant the content of which would include certain provisions as stated
in said sections. Specifically 9.31.2(D) provides that parties shall
execute a written agreement which specifies the relationships therein and
(G) states that every rental agreermnt will allow the tenant to renew the
rental agreement except upon just cause for not renewing. There exists in
the Code of Iowa various statutes which deal with the landlord -tenant rela-
tionship, among them sections 562.4 and 562.6. Section 562.4 states that, "Any
person in possession of real estate with the assent of the owner, is presumed
to be a tenant at will until the contrary is shown, and 30 days notice in
writing must be given by either party before he can terminate such a tenancy;
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but when in any case, a rent is reserved ixiyable at intervals of less than
30 days, the length of notice need not be greater than such intervals." A
tenant at will is found in Black's Law Dictionary revised 4th Edition, as:
"Where lands or tenaments are let by one man to another, to have and to hold
to him at the will of the lessor." Section 562.6 states: "Where an agreement
is made fixing the time of termination of the tenancy whether in writing or
not it shall cease at the time agreed upon without notice. The above stated
statutes conflict with the above enumerated provisions of section 9.31.2 in
that state law allows for the creation of a tenancy wherein the premises may
be held by one party solely upon the will of either party and that such a
leasehold interest may be terminated by the simple absence of a continued
will to let said premises. Is the initiative proposal inconsistent with
the state law? The Iowa Supreme Court in Green v. City of Cascade, 231 N.W.2d
882 at 890 dealt with the problem of inconsistency. It held that "the legis-
lature appears to say in section 110)(Section 364.2) that state laws are to
be interpreted in a way to render them harmonious with ordinances unless the
court or other body considering two measures cannot reconcile them, in which
event the state law prevails." Applying this method of statutory construction
it seems that the two laws cannot be reconciled in that the state law allows
for the existence of a certain tenancy which the municipal law expressly pro-
hibits.
In reviewing the Initiative proposal I have interpreted that the notice
and hearing requirements as set forth in section 9.31.11 of the proposal
apply to all actions concerning repair and deduct, rent abatement, rent with-
holding, and the like. It has been held that in instances where an ordinance
provides such economic sanctions for the enforcement of a housing code, such
ordinances must provide due process to the lessor or landlords prior to the
implementation of such economic sanctions. Whenever a person is deprived -
even temporarily - of a property interest, the Fourteenth Amendment
Due Process clause of the United States Constitution requires that such
person be given an opportunity to be heard "at a meaningful time and in a
meaningful matter." See Mathews v. Eldridge, 424 U.S. 319, 333, 96 Supr,Ct.
893, 902 (1976). The term "meaningful" opportunity to be heard has been
interpreted to include: (1) Timely and adequate notice detailing the reasons
for a proposed termination; (2) An effective opportunity for the recipient
to defend by confronting any adverse witnesses arra by presenting his own
arguments and evidence orally; (3) Retain counsel, if desired; (4) An impartial
decision -maker; (5) A decision resting solely on the legal rules in evidence
adduced at the hearing; and (6) A statement of reasons for the decision and
the evidence relied on. See State ex rel Michalek v. Le -Grand, 253 N.W.2d
505.
There may also exist a potential drafting problem within the Initiative
proposal with respect to section 9.31.4(D) in the operator not to discriminate.
It is unclear from section 9.31.11 as to whether a person who has a complaint
regarding a discriminatory practice in housing should use the procedures set
out in the proposed Initiative. Should the procedures as set forth in the
proposal be adopted there may be a "inconsistency" problem with the provisions
of section 601A of the Code of Iowa, 1977, which sets forth procedures in
handling civil rights complaints.
Section 9.31.1(G)(7) and (5) contains a definition of "household" and
"family" wherein it states that a family would mean "any person or persons
whether legally related or not who occupy or use in eamonn a single duelling
or dwelling unit for residential purposes." This provision would only be in
effect for this ordinance and would in no way limit or amend the definition of
a family as set forth in the zoning code. The reasons for this are the limitations
in our own hone rule charter which prohibits initiative ordinances from enacting
zoning provisions. In addition, the procedures in Chapter 414 of the Code of
Iowa pertaining to zoning provisions have not been complied with.
�Jw
AN ORDINANCE 'rO INPLEWNr Tiff: PURKISES a' T11 14rN " HoLr)M BTA MMM, TO
C AR1I"i RrO M AND COUGATIC14S OF IIh MORD8 AND TENAM AND TO IIJCI UMM THM TO
INPRCIvE THE QUALITY OF HGWING, TO PWVnZ TFI WIS WITH SEICURM CO T!<E W AND TO
I'FY MCP THEM FFCM WVI.IATICIN, AND TO MOM AND 4>W PM
TICN IN HOSING TRANSALTICIN8.
SECTIONS:
9.31.1 Short Title, Purposes and Construction, Application, and Definitions
9.31.2 Terra and Conditions of Rental Agreements
9.31.3 Rental Deposits
9.31.4 Obligations of Operator
9.31.5 Obligations of Tenant
9.31.6 Remedies of Tenant
9.31.7 Duties of the Housing Inspector—procedure
9.31.8 Application of Specific Ropealar
9.31.9 Rent Withholding
9.31.10 Receivership
9.31.11 Appeals
9.31.12 Remedies of the Operator
9.31.13 Remedies of Operator and Tenant for Abuse of Access
9.31.14 Retaliatory Conduct Prohibited
9.31.15 Effective Date, Repealer, Savings Clause, Severability
9.31.1 Short Title, Purpoess and OXWtrvction. Application, and Definition
`.,. Short Title. This ordinsnoe shall be kr own and may be cited as the "Residential
Landlord and Tenant Ordinance.'
8. Purposes, Rules of Oxxtruction.
1. This o ally omatrued and applied to pr+atote its un-
derlying purposes and policies.
2. Underlying purposes and policies of this ordinance are
a. o t� the � mum s of the MiniHousing Standards, Chapter 9.30
— b. to clarify the rights and obligations of the operators and the tenants
of rental re*.identfal how ,
c. o operators and tenants to maintain and inprove the quality
d. to protect tenants from retaliation and to provide them with sufficient
security of tenure to enable thea to enforce their rights Lader salt' ap-
plicable statute, ordinance, or rule of law, "
e. to Protect Persons from discrimination in housing transactions.
—C. Unconscio ability.
1-I?thisoourt, as a natter of law, finds
a. a rental agreettent or any provision thereof was unconeciaable Idmn
[rode, the oourt may refuse to enforce the agoment, enforce the remain-
der of the agreement without the iawonsciaable provision, as licit the
application of any unconscionable provision to avoid an nmooneoioneble
result; or
b. a settlement in which a party waives or agrees to forego a claim or
right under this ordinance or under a rental agreement was unoonwicn-
able when meds, the court may refuse to enforce the sattlmheht, enforce
the reminder
of the Battlement without the unconmoic ahla ywovision,
or limit the application of any unoaacio able provision to avoid an un-
conscionable result.
2. If unconscionability is put into issue by a party or by the oarst upon► its
0 •
9.31.1
own action the parties shall be afforded a reasonable opportmaty to prevent evi-
dence as to the setting, purpose, and effect of the recital agreement of aattl vast
to aid the court in making the determination.
D.(rill�tion�of Good Faith. Every duty Harder this ordinance and every Hct which
meet be performeraa.�' condition preowlent to the exercise Of a right or xemedy un-
der this ordinance irgxxm an obligation of good faith in its performance or en-
forcerrennt.
E. Territorial Application. This ordinance applies to and regulates the oompation
of all residential rental properties located within this City.
F. L'/xIusione franApplication of ordinance. Unless created to avoid the applica-
r
fl_T t FT
an of es froruuarnoe, fro following arrnngernsute are not governed by this ardi-
nanCe:
1. residence at an institution, public or private, if incidental to detention
or the provision of medical, geriatric, educational, counseling, religious, or sim-
ilar service,
2. occupancy under a contract of sale of a dwelling unit or the property of
which it is a part, if the occupant is the purchaser or a person who suoosede to
his/her interest,
3. occupancy by a member of a fraternal or social organization in the poxtion'
of a structure operated for the benefit of the organization,
4. transient oocupancy of less than one month in a hotel, or motel,
S. occt>Qancy by an eapl yes of an. operator whose right to occupancy is eodi-
tional upon enployme nt in and about the promises,
6. occupancy by an owner of a condcadniuum unit or a holder of a proprietary
lease in a cooperative,
7. occupancy Harder a rental agreemazut covering pxmissa used by the occupant �
primarily for agricultural purposes.
8. occupancy of a rooming unit in a single family owner occupied dwelling in
uhnich rooming unite are let to 3 or fewer persons.
9. occupancy of a side family dwelling which is the usual and baba fide res-
idence of the owner by a tenant for a temporary period of lass then one year.
G. General Definitions. Subject to additional definitions contained in wAxwIuent
Sections o which apply to specific. Sections or subsections thereof,
and unless the context otherwise requires, in this ordinance:
1. 'action' includes r8=43MMt, set-off, suit in equity, and any other pre
ceeding in which rights are determined, incluiing an action for possession.
2. 'building and housing codes' include any law, ordinance, or governmental
regulation concerning fitness for habitation, or the cautruotlm, maintsnsrxrs, op-
eration, occupancy, use, safetyr or appearance of any premiss or dwelling omit.
3. 'dweelling' means any building which -is wholly or partly used or inrsndsd
to be used for Living or sleeping by human occupants.
4. 'dwelling unit' means any mom or group of rooms located within a dMall.ing
and forming a single habitable unit with facilities utdc u ere used or inteixlad to
be used for living, sleeping, cooking, and eating.
5. 'family' means household, for purposes of this ordinance and Chapter 9.30
of the Municipal Cods,
6. 'good faith' means honesty in fact in the conduct of the transaction ecn-
oernod.
7. 'household' means a person or persons, whether legally related or not, who
occupy and use in c== a single dellingr or dwelling unit for resi4mtW propos-
es.
B. 'landlord' means operator.
9. 'Operator' means any parson who has charge, caro, or control of a.building
or part thereof, in which dwelling units or rooming traits am let.
.
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9.31.1
10. 'owner' means any Parson who, alai® or jointly or severally with others:
a. shall have legal title to any dwelling unit, with or without aocagneny-
ing actual Possession ther,.of, or
b. shall have charge, can, or mntrol of any dwelling or dwelling unit as
owner or agent of the owner, or as executor, administrator, trustee, or
guardian of the estate of tha goner. Any such person thus representing
the actual owner shall be bound to amply with the pttrvisione of this
ordinance to the same extent as if s/he were the owner.
11. 'person' means and includes any individual, firm, corporation, association,
or partnership.
12. 'premises' means a dwelling unit and the duelling or structure of which it
is a part and facilities and appurtenances therein and grow, areas, and faciU-
tios held out for the use of tenants generally or whose use is promised to the ten-
ant.
13. 'rent' means all Payments to be made to the operator under the rental agree-.
rent, excluding any payment which is exclusively a rental deposit.
14. 'rental agreement, mans all agrecrrnts, and all valid rules and regula-
tions adopted under Section 9.31.S.B, embodying the terms and conditions concern-
ing the use and occupancy of a dwelling unit and premises.
15. 'rental deposit' means any deposit of moncy to secure the performance of a
residential rental agreement, other than a deposit which is exclusively in afwnre
payment of rent.
16. 'roomer' means a person Occupying a rooming unit.
17. 'reaming house' m3wis any dwelling, or that part of any dwelling contain-
ing one or more rooming units, in which space is let by the owner or operator to
more than three persons except those idose relationship to the owner or operator
by bloat, marriage, or legal adoption was the basis for occupancy.
18. rooming unit means any group of room forming a single habitable unit
used or intended to be used for living and sleeping but not for cooking and eating
purposes.
19. 's/he' means she or he.
20. 'single family residence' means a separate structure maintained and used
by a single household as a dwelling unit. Aotwithstanding that a dwelling unit
shares one or more wails with another dwelling unit, it is a single family resi-
dence if it has direct access to a street or thoroughfare and shares neither heat-
ing facilities, hot water equipment, nor any other essential facility or service
with any other dwelling unit.
21. 'tenant' Means a person or persons entitled under a rental agremsnt to oc-
cUPY a dwelling unit to the exclusion of other persons who are not Msabst'1 of the
same household.
9.31.2. Terms and Conditions of Rental Agreements.
A. An operator and a tenant mey inc ludea rental agrem=t tens and conditions
not prohibited by this ordinance or by any other ordinance, statute, or rule of
law.
f B.F oaration of Rents and Obligations to Maintain P rty Forbidden.
A rental agreement, assignment, ccnveyanoe, trust, or Security insitrument May
not permit the receipt of rent free of the obligation to ooeply with Section 9.31.'
4A.
C. Prohibited Provisions in Rental A4reatrnts.
�. A rental agreement may not provide that the tenant:
1. agrees to waive or forego rights or remedies under this Ordinerx a or under
any other applicable statute, ordinance or rule of laws
— 2. authorizes any person to oonfass judgement on a claim arising out of the ren-
tal agreement;
3
9.31.2
3. agrees to pay the operaw 'u Attorney's fees;
- 4. agrees to the exculpation or Iinitation of any liability of the operator a-
rising under law or to indemnify the operator for that liability or the costs con-
nected therewith;
.-5. agrees to a collateral agroemurt or provision incorporated in the rental ag-
reemJnt by reference unless a copy thereof is affixed to all copies of the rental
agreement;
-6. agrees to a lien on behalf of the operator of the tenant's chattels, except
by formal legal process as provided by statute.
D. R ed Provisions in RentalA written rental agreement evidencing
the understanding o 'the at bets. shexecuted by both the operator and the
tenant and shall be subject to the following ocenditio ns:
1. the rental agreement shall be executed by all parties be the rental agree-
ment in duplicate, one copy of which shall be provided by the operator to the ten-
ant at the time of execution;
2, the rental agreement shall specify any restrictions as regards the use by
the tenant of the leased premises and further specify any attendant rights to dna
use of the leased premises,-
The
remises;
The rental agreement shall also contain:
3. a provision specifying the amount of rent, rental deposit, and any other
fees to be charged to the tenant;
4. a covenant of habitability as provided in Section 9.31.4A;
5. a provision acknowledging and specifying the operator's and the tenant's
collateral responsibilities for naintainence of the pranises;
6. a provision acknowledging the operator's responsibility to provide writ-
t:n !ceipts for all cash prudes received from the tenant;
7. an itemization of all servirxs to be provided by the operator to the ten-
ant of whatsoever kind, provided that the operator sha11 have the right to alter,
modify, substitute or change such services so long as the new service is substan-
tially similar or equal to the original service itemized in the rental agreement;
G. an itemization of all oquipmant provided by the operator to the tenant pro-
vided that the operator shall have the right to alter, modify, substitute or change
such equipment so long as the new equipTant is substantially similar or equal to
t`r: original equipment itemized in the rental agreement;
9. a provision enumerating t'x. nud)er of persons authorized to ocarpy said pre-
mises not to include occasional guests;
10. a provision acknowledging W! operator's duty to furnish the tenant with a
checY..list of damages and defects as provided by Section 9.31.313 and with go itend.-
zation of any damages repaired by the operator and charged to the tenant..
r E. Disclosure.
1. An operator or any person authorized to enter into a rental agreeaent on his/
hes behalf shall disclose to the tenant in the rental agreement the nem mod address
of
a. the person authorized to manage the premises; and
b. an owner of the premises or a person authorized to act for and on behalf
of the owner for the purpose of service of process and receiving and receipt -
ting for notices and demands.
2. The information required to be furnished by this subsection shall be kept
current. abis subeection extends to and is enforceable against any successor oper-
ator, aver, or manager.
3. A person who fails to co piy with paragragh 1. of this subsection becomes
an agent of each person who is an opx.rab= form
a. service of process and receiving and rooeipting for notices and dsaands; and
b. performing the obligations of the operator under this ordinmm and,under
4
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9.31.2
the rental agreement axi cDgxending or making available for the purpose all rent
oollected fres the premises.
—F. Sublease end nsei t. Every rental agreement shall contain a provision allaw-
ng— a tenant to see gn or sublease. The right to assign or sub -lea shall be
subject to the following conditions
1. fhless otherwise agreed in the rental agreement, the tenant may sub -lease
his/her premises or assign the rental agreement to another upon 30 days notice to
the operator.
2. The rental agreement may oondition the tenant's right to assign the rental
agreement or sub -lease the premises on obtrining the operator's approval of the
prospective assignee or sub -tenant, which approval shall not be withheld without
just cause upon reasonable grounds relating to the ability of the prospective as-
signee or sub -lessee to fulfill the provisions of the rental agreement. Reasonable
grounds for rejecting a proposed sub -lessee or assignee shall he 1Ldted to:
a. insufficient financial responsibility;
b. unwillingness of the prospective assignee or sub -lessee to assume the
same terms as are included in the existing rental agreement;
c. an affadavit signed by a previous operator, setting forth material abuses
of otter premises occupied by the prospective sub -lessee or assignee or mater-
ial breach by the prospective sub -lessee or assignee of the recital agreement
with the previous operator.
3. In any proceeding in which the maconableness of the operator's rejection
shall be in issue, the burden of showing reasonableness shall be on the operator.
--G. Renewal of the taesmtelAgreement. Every rental agreement shall contain a provi-
sion allowingthe tenant to renew the rental agreement except upon the existence
of just cause for rot renewing the rental agreement. Just cause shall be limited
to one or more of the following:
1. the tenant has failed to pay rent which is due and owing, except as provi-
ded in this ordinance or under any other applicable statute or rule of law;
2. the tenant is, during the rental period before the emgmiration of the rental
agreement, in substantial violation of the rental agreement or of Section 9.31.5;
3. the operator proposes, at the expiration of the rental agreement, reasonable
changes of substance in the terve and conditions of the rental agreement, including
specifically any increase in rent, provided that such changes and the increase in
rent are fairly applied to all tenants and are not retaliatory against any tenant
or group of tenants;
4. the operator seeks permanently to board up or demolish the premises because
s/he has been cited by the Housing Inspector for substantial violations of Chapter
9.30 of the YAmicipal Code and it is economically unfeasible for the operator to
correct the violations, provided that the operator commences this action before
the dwelling is oertified for rent withholding under Section 9.31.9;
5. the operator seeks at any time to retire the dwelling pemsanently from ren-
tal residential usq, provided that this paragraph stall not apply to circumstances
covered under paragraph 4. of this subsection.
6. the operator seeks to do substantial repairs or re odlirg which cannot be
cone without vacating the dwelling unit. The operator stall offer, to any tenant
roquired to vacate a dwelling unit under operation of this paragraph, a new lease
on the dwelling unit when the dwelling unit is again ready for occupancy, unless
the tenant waives this right in writings
7. the owner of a dwelling of four or fewer dwelling units seeks to personally
occupy a unit, or has contracted to sell the dwelling to a buyer who wishes to per-
sonally occupy the dwelling unit and the oontract of sale requires that the dwell-
ing unit be vacant at the time of closing;
B. the operator conditioned the tenancy upon and in oonsideraticn for the ten-
ant's employment by the operator in or about the premises and the *+l. ywmt is
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9.31.3
being teaninated.
H. FSnedy for Lhlawtul Provision In Rental A4reements.
A ion phohib ted by this Section included in a rental agreement is unenforce-
able. A rental a9zearent which does not include a provision required by this Sec-
tion snail be construed as if it did include the required provision. If an opera-
tor uses a rental a%VWe nt containing prohibited prmisioos or which door not Con-
tain required provisions the tenant shall be entitled to dosages.
9.31.3. Dental Deposits.
-' n. An operator may not demand or receive a rental deposit, however denominated, in
im amount or value in exOeas of one month's periodic rant nor any adverm payment
of rent except the rent for one period which is due at the beginning of1t at peri-
od.
B. checklist of Dermaes and Defects.
1. 'Ihe operator eha�, 'n�5 days of the initial date of oocaparxy or upon
delivery of possession and before roceiving the rental deposit from the tenant,
provide the tenant with a checklist of damages and defects.
2• The operator and tenant shall jointly examine the dwelling unit and doll
record on the checklist all observable damages or defects and the condition of all
rxlu'Pre t and furnishi.nge supplied by the operator.
3. If the operator and the tenant fail to agree on arty item each shall record
his/her dissent in a space provi(sed cn the checklist for that S1rPOse or in a sapa-
rate writing attatched to the checklist.
4. The checklist shall be fillers out in duplicate, the eparatcr and the benunnt
shall sign and date both copies, the dissenting party shall aign and date any state-
nvnt of dissent, and each party shall retain one copy.
5. If latent defects bacon- manifest or if defects are repaired during the ban-
ancy the checklist shall be revised and all revisions shall be initialed and dated
lry both operator and tenant.
6. At the termination of the tenancy the operator stall examine the dwelling
unit in the presence of the tenant and shall immediately record, initial, and date
on both Copies of the checklist any damages observerd, apart fru- Ordinary wear and
tear, which are not recorded on the current doe klist. If the tenant disagrees;
with the operator on any item, s/he shall record his/her dissent Onboth oopiea of
the checklist and shall date and sign the statmmsnt of dissent.
9.31.4. Cbli tions of the Operator.
A. Operator tytarn premises. An operator shall
and, 1. oonply with �t ne r remernts of all applicable building and ho UdM erodes,
2. make all repairs and do whatever is necessary to put and keep the premises
in a fit and habitable oonditionthroughout the term of any rental agreeernt.
B. 11-n operator and the tenant of any dwelling unit may agree that the taraat is
to perform specified repairs, maintenance tasks, alterations, or re adling only if
1. the agreement of the parties is entered into in good faith and nat for the
Purpose of evading the obligations of the operator and is set forth in a soparnte
writing signed by the parties and sk;p=ted by adequate consideration, sad
2. the agreement does not diminish or affect the obligations of the operator
to the tenants in other dwelling unite in the premises.
C. The operator may not treat perfdnnw)ce of the separate agreement described in
subsection H as a condition to any obligation or perf=Ba nee of any rwAM1
meet, unless the tenancy was cnnditikxned upon and in consideration fat the tenant's ✓
mPlCY'rleht in or about the promises.
D. Operator not to Discriminate.
Chapter 10.2—of the ftmiCipal Code, entitled the Hamer Rights Closdsaicn, is hereby
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9.31.4
„m:ndcd by striking Section 1.0.2.5 aryl insr.r-tir;rl in lieu thereof the following;
10.2.5 Discriminatory Pract,-_%_--Housin
A. It shall be unlawful for any µ.:rsan to rclusc to enyngi• in a housing transaction
with any other person )xs:au-uz of race, co or, crotcJ, rel (.limon, national origin, age,
sex, lawful occupation, affoctional prefesencu, nurita) st rxzs, disability, the
fact that tlur: are children in t(•, per:lon's household or .he number of such chil-
dr :n (cxcc:pt fur corpliano-- with any a14)licable law conctrnuly minimum space re-
quirrmnnts in residential .entuil rhr?.J.+nqn), or the fact that the person receives
public financial assistance of any kir.i
B. It shall be unlawful for any p rrxm to discriminate against any other person be-
cause of rac„ color, creed, religion, njUrnaj origin, we, sex, lawful occupation,
affcctional preference, marital status, disrhility, the fact that there are chil-
dren in the person's household or the ..s of such children, or the fact that
the per= receives public financial assistance: of any kind in the'tezms, condi-
tions or privileges o: any rn-d estate transaction.
C'. It shall be unlawful f:ar any person to directly or indirectly advertise, or in
ory other maturer indicau: or publicize in any real estatr transaction that any per -
:ion because of race_, color, creel, religion, national oriyi.-z, age, sex, lawful or-
cupation, aff(.xc onal preEcrence, m(rital status, disabiliLy, the fact that here
are children is the person':, householri, or the fact that the person rooei•rs pub-
lic assistance of any kind is un elocv,, oujectionablee, or not solicited.
L. l�ceptions;
1. Any bona fide religious institution w ;'. respect to any qualification it
may rose based cn reJic,0": (,r}u:n such qual.ifrcat-ions are related to a bona fide
religious purpose.
2. The rental or lc:a irnl of four (4) r fors within an owner•-occupirA
rooming house in which renters pass through the amier's living area.
3. Pestrictions based ori sex in tly: rental or leasing of housing accamualations
Iq nonprofit corporations.
4. Restrictions basea cn sex ler the rurtal or leasing of ha-•ang acorurodations
within which residents of both sexes would share a ccimm liidu om facility on the
:came floor of the building.
S. This ordinance does rut cr.vdt.e an affiunative duty to rerove barriers for
the handicapped in excess of the requirenents of Chapter 104A, Io'm Cuba.
6. Jlousing acmrodation: mal ince dcsi.gnated specifically for the disabled, hoa-
r. •'r:r, iv)using acc c odaticros ney not.be restricted anmq the disabled cn the basis
Of race, color, creed, Iell(llon, nat3—;1 origin, sex, marital status, affectional
prefer::nco, t}re fact that tty:re are chi !a._n in the person's househdld, or the
fact that the person receive,:, public financial assistance of any kind, or lawful
occupation.
7. Housing aocoarodations may be de::.;.:,ted specifically for the elderly, hao-
cver, housing actamodaticns mzy not lx.. restricted arrong the elderly on the basis
of race, color, creed, religion, national origin, sex, lawful occupation, marital
status, affectional prefermca, or the fact that the person reeaives public finan-
cial assistance of any kind.
R. Any owner occupied roaring house arca any owner occupied dwelling in which
there are 4 or fewer rental units may be restricted as to fwdlieg with children,
r.r as to affectional preference or marital status.
:.21.5. Tenant Obligations.
A. ':inant to Maintain Dwellinq Unit.
A tenant shall
I. carply with all otJ1(;:ztions primarily inposed ulxn tenants by applicable,
provisions of building and housing codes,
2. not deliberately or negligently cau:..: uubstarmial darraye to or re u)ve az:y
• • 9.31.5
part of the premises or krowimgl.y permit any porson on the premises with his/her
permission and under his/her (xmt ruL to du uo, amxi
3. conduct himeelf/nereelf mO rcrluire usher persons on the premises with his/
her consent and under his/her cmtxol to conduct themselves in a M rmer that will
not substantially disturb his/her neighbors' peaceful enjoyment of the premises.
B. Rules andAngulations. An operator, from time to tims, may adopt a rule or regu-•
la , however , concerning the tenant's use and occupancy of the premi-
ses. it is enforceable against the tenant only if
1. its purpose is to prorate the convenience, safety, or welfare of the ten-
ants in the premises, preserve the operator's property from abusive use, or make
a fair distribution of services and facilities hold out for tenants generally,
2. it is reasonably related to the purpose for which it is adopted,
3. it applies to all tenants in the premises in a fair manner,
4. it is sufficiently explicit in its prohibition, direction, or limitation of
the tenant's conduct to fairly inform his/her of what s/he mast or mot not do to
comply,
5. it is not for the purpose and does rat have the result of evading obliga-
tions of the operator, and
6. the tenant has notice of it at the time s/he enters into the rental agree-
ment or, if it is adopted after s/he enters into the rental agreement, notice rea-
sonably in advance of its effective date.
If a rule or regulation is adopted after the tenant enters into the rental ag-
reema nt that works a substantial modification of the rental agreement it is rat
valid unless the tenant consents to it in writing.
C. Access.
1. A tenant shall not unreasonably withhold assent to the operator to enter
into the dwelling unit in order to inspect the premises, make necessary Or agreed
repairs, decorations, alterations, or inprwamernts, supply necessary or Agreed ser-
vices, or exhibit the dwelling unit to prospective or actual pure aeera, Mortgagees,
tenants, workers, or contractors.
2. An operator may enter the deelling unit without consent of the !"cant in
case of emergency.
3. An operator shall not abuse the right of access or use it to harass the ten-
ant. t)ncept in case of emergency or unless it is impracticable to do so, the it
ator shall give the tenant at least 24 hours' notice of his/her intent tb enter and
may enter only at reasonable times.
4. An operator has no other right of access except
a. pursuant to court odder, or
b. unless the tenant has abandoned or surrendered the premises.
9.31.6. Tenant Remedies.
A. Termination. It is a material nonconpliance by the operator with the rent-
al agreement or a noncompliance with Section 9.31.4A materially affecting health
and safety, the tenant Mny deliver a written notice to the operator specifying the
acts and omissions constituting the breach and that the rental Agreement will ter-
minate upon a date not less than 30 days after receipt of the notice if the breach
is not remedied in 14 days after receipt of the notice and the rental agreement
shall terminate as provided in the notice subject to the following:
If the breach is reediable by repairs, the payment of damages or otherwise
and the operator adequately remedies the breach,or makes an agremment with the ten-
ant to comedy the condition before the date specified in the notioe.th6 rsntai aq-
reemPs t shall not terminate by reason of the breach. 1_._1
J
• 9.31.6
I_f. Rcltais and Deduct.
1. If operator fails to repair .vey infects or damages in the premises which
�- s/lee is obligated to repair or fails t„ prm ide or replace arty aluipment or services
for which s/ho is obligated tuul Ux reau,wd,l• cost of such repair, prmd ion or
n•plau•rnunt is less Uharn S];U Uue terwnl cony rot ify Uw ot.eraYnr of hin/tu:r inten-
t ion to aerreet Uv-- condition at UX) ofxer,htor's App nsv. If the operator fails to
comply, or to rake an agreLuunt with thin U:n•,ret to correct the conditim within 14
days or as promptly as corxitiona rrxfairc in case of emergency after being noti-
fied by the tenant in writing, the tenant may cause the work to be done by a per -
:,on who makes such work his/her regular occupation and, after submitting to the op-
erator an itemized statement and copies of receipts for the actual amount expended,
deduct from his/her rent the actual cost of the work, not exceeding the amount
specified in this paragraph.
2. The tenant may not make use of this remedy more than 4 times in any 12
month period.
C. front Abatement. If contrary to the rental agreement or Section 9.31.4A the op-
crator fails to supply heat, running water, hot water, electric, or gas or fails
to maintain electrical, plumbing, or structural facilities in the dwelling, or
fails to supply or maintain any other services, equipmnt, or facilities which are
essential to the health, safety, or welfare of the tenant, or if the dwelling unit
or premises are damaged or destroyed by fire or casualty to the extent that enjoy-
ment of the dwelling unit is substantially inaired, the tenant may, upon giving
notice to the ooeratOr of the action to be taken and the arounls fon such action
1. continue Occupancy, if lawful, and abate rent, as of the date of the breach,
in proportion to the diminution in the fair rental value of the dwelling unit, or
2. abate the full amount of UY., rent ao of the date of the branch, and
a, temporarily procure reasonable substitute housing during the period of the
non=rpliannce and recover the difference between the artual and reasonable cost
or fair and reasonable value: of the substitute housing and the periodic rent,
b. and unless the operator remedies the breach, or makes an agreement with the
tenant to remedy the breach, within 14 days, the tenant may vacate the premises
and teammate the rental aureenent as of the date of vacating and recover the
difference between the actual and reasonable cost of the new hazing and the
periodic rent.
D. Hemedies Not Exclusive
1. The tenant may not make use of more than one of the remedies provided in
paragraphs A, B, or C of this Section for any one breach.
2• However, in addition to the remedies provided in paragraphs A,B, or C of
this Section the tenant shall be entitled to all other remedies arising under sta-
tute, ordinance, or rule of law and shall be entitled to appropriate dw ages, spec-
ific performance, or injunctive relief for any substantial nonOOipliarm by -the op-
erator with the rental agreement or Section 9.31.4A.
it an operator unlawfully removes or ext tenant from the premises or
willfully diminishes services to the tenant by interrupting or causing the inter-
ruption of heat, running water, electric, gas, or other essential service, the ten-
ant may recover possession or terminate the rental agreement and, in either rase
shall be entitled to damages, and appropriate injunctive relief,
F. Rental Deposit and Pnaald Rent. 7f. the rental agreement is terminated the oper-
ator sha71 return Or as nuc of the rental deposit as the tenant it lawfully
entitled to and all prepaid rent. Pzxxxnting for rent in the event of termination
shall be made as of the date of termination. In case of termination or a�atemnt
rent shall be apportionable from day to day,
C.- Rights of the tenant under this Section do not arise until notice has been given
to the operator by the tenant or if the condition was substantially caused by the
E
9.31.7
deliberate or negligent act of the trent, a member of his/her household or a per-
son on the premises with than tmant'a consent and under the tanant'■ control.
1 9.31.7 Duties of the Housin�g 1nspector—Pnocadure.
:�J- pter 9.30.51D c riuuoilxil ooze L— n�i� mnended by striking pstrgraph
9.30.9D and inserting in lieu thereof the following:
D. whenever, upon inspection of any rental dwelling, the Housing Inspector finds
that caditi,ons or practices exist which are in violation of any provisions of
this Chapter the Housing Inspector &hall revoke the permit of the &walling, if the
dwelling has a permit. ^.he Housing Inspector shall also take the following actions:
1. If the dwelling meeta the criteria for condemnation in Section 9.30.10 of
dus Chapter and is, in the judgement of the Housing Inspector, an iranediate danger
to the health or safety of the occupants, and no immediate corrective action can be
taken which will be sufficient to safeguard the health and safety of the occupants,
the Housing Inspector shall immediately begin the procedures provided for in Sec-
tion 9.30.10 and shall order the dwelling to be vacated.
2. If the dwelling does not meet the criteria for oondemation and placarding
the Housing Inspector shall issue a traporary permit for the dwelling. The Housing
Inspector shall give notice in writing to the operator that the permit has been re-
voked and that a tenporary permit has been issued. The notice shall be in the form
provided in 9.30.3A of this Chapter and shall be an order to correct the conditions
and practices which are in violation of this chapter within a reasonable period,
to be determined by the Housing Inspector. The order shall specify a date by which
each correction is to be completed. The corrections shall be scheduled to be com-
pleted as prcnptly as conditions require in ease of emergency and as soon as prac-
ticable for other corrections, but in no case more than two months, exospt for cor-
rections that cannot be completed due to weather or other factors beyond the open- . .
ator's control.
3. The Housing Inspector shall provide a copy of the notice to every affected
tenant in the dwelling. For this purpose in the case of multiple dwellings or roam-
ing houses it shall be sufficient for the Housing Inspector to post the notice in
a conspicuous place in a part of the dwalling comm to all traants. ho pars=
shall deface or remove such notice fro .any dwelling until all corrections ordered
in the notice have been cotrpleted.
4. The Housing Inspector shall reinspect the dwelling at the end of the period
specified in the notice for the ompletion of all corrections except that s/he
shall reinspect before the end of the period
a. as the }busing Inspector considers necessary in the case of emergency
conditions,
b. upon information from the operator that all corrections ordered in the
notice have been onplcted, or
c. upon information frau an affected tenant that the operator is not sub-
stantially eanplying with the schedule provided in the notice.
S. upon reinspection the Housing Inspector shall take one of the following ac-
tions:
a. If the Housing Inspector finds that the conditions and practices spWi-
fied in the notice have been corrected s/he shall, upon application end
payment of fee by the operator, issue a permit for the du#el.ling.
b. If any condition or practice has not been corrected by the• date speci-
fied in the notice the Housing Inspector shall certify the dwelling for
rent withholding and shall so notify the operator and the tenants in the
dwelling.
G. In instances where violations of this Chapter are confined to cine of sever- J
al dwelling units or moving units within a dwelling and, in the judgement of the
Housing Inspector, do rot constitute a hazard to health or safety elaaAere, the
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9.31.2./9.31.,
lousing Inspector may limit the ,-!r•plicaLion of the notice arca order to the dwellim.
unit in which the viol ations c:ri t,t..
9.31.8. Pj,,iticat-ion ut µ•cif' P ale_r.
if C9rtptc,r 9.30 of tJu lh nic pa fY ,, shall have lx n amanded at any time te:-
taeen the initial filing of t,is ordinance with the Cif I CIPrk and its final pre-
sage the repealer and amrndiwan: in Sccwrtion 9.31.7 shat: •:.r'., to '1 ,.:res[xmds:
Section of Chapter 9.30 ar ammcid.d. Slrcrifically, if Ur City Urc,r:.,: st><all pas::
the proposryl dousing taaintainanx an'.l Cccupartcy Lb&, Section 9. 1 .'/ shall apply t
Section 9.30.5) of C'hapWx 9.30 an:'. A I other references in this ordinance to chZ,.
ter 9.30 shall be altrrcd corresponiit:lly.
I+o
_9. I'i�nt WiU:hn.LLit�t.
A. k1 nevt� as dwellirnl is. r,•r.:ificr I:} '.. +rsing Inspector for rent withholder+a
the duty of the tenant: i.r : hr: 6.4,- L+ . u,.] pay and the right of the operator to
collect relit shall be sudq.::Llrrl wi:l w;;e ,ef fecting any other term or rbtviitions c
the rental agrpiTent, +•rr:cl.t n,: spLx:ifirrl in this Section, until such time as it
dwelling is again cc•rtit ii.til as fit for, huir n habitation or until the rentel ac z.
ment is terminated. The )I -orator from whim rent is being withlwici pursuant to U•
section :heel not ]r_ entat•o.tcl v, maintain a,t action against any totan*_ of said
dwelling for rent or for tossussior. of said dwelling, oacept as providai in sur::
tion 8 of this section. ""hu opera' -•r of said dwel.linq shall rot:
1. raise the rent durmq any fx' °aI when the t:enantt are witiholdinq rent pu:'-
suant to thi.s Section,
2. relet any dwellinq unit. whicli is or :'r, 1.1 beca+te vacant unless s/he disolc-
ses the narru of the new teroilt to the City, wilich shall notify the new trenart of
tees/ter duty to withtAld Us.- rent,
3. unLawfully rcarnr: or cccludt any truant firm the pranises or willfAly der..'
nish services to the tenant by int xv it t.i+g or o,u •ing the interruption of heat,
runr xg wager, hot waa:r, electric, gas, or other essential mrvice which the: cr,
ator is obligatix] to provide, or
4. procc:de against any t:c:nant for any violation of the rc ntal agrcmwnt or Sc
tion 9.31.5 unless ruck procc•. -ling is .in iloxl faith •and not for tho purpose of r, -
trli.ating against the tcrrant.
B. The tenants in the dwelling certified for rent withha•iding shall deposit the
periodic rent as it berxmi�s cl.m- into an interest'bearixe., r!zcrow acxut:nt in the n.:
of the City, or in tM rwrr of an authority cstabli::1 ' / the City for this pur-
pos in accordance with prtcedures rccntrred by any appticible statute, in a bank
or trust conr4rrany desigrwte(I by tY.- CJLv. '1'm escrow account for the tnrrants of any
one der-lling shall be a joint acroovr.t. ir.c a :=rrarat:e aca),Anting shall be kept of
Cie deoosits of each t:era:tt. .,.f t1 t: :it is drdinyucnt in rent the City shall n
trfy the operator and the: rlr::atr•r r,y l,roc,r d against the tenant for the rent or
for possession. 'tire operator shall r,:.+ l- er;titlal to proceed against the tenant
for rent or for possession if the u...z r,� Utall have obtained a court order to aba'
all or part of the rent orad the tcratit e:: not delinquent in paying,into the escro„
account that part of tha rent due pursu.c:c to the court order. Thu City rhal1 ocx
tel all disliursemants of rent frau the escrvd account.
C. Whenever a dwelling is certified for rent withholding the Hous.trg inspector
shall give notice in writing as provided in Sat -tions 9.31.7D2 and 9.31.7D3.
D. The City sluLU release funds to the r.1-erator within tete pvrrtcd specified by Un
!busing Inspoctor in Section 9.31.7 C only upon application of the'ope_utor ani
upon presentation of
1. an itcmi+ed statcnumt and rexcipts tik actual amount exT"Oe.d in purer.
sing materials and txrfcrming repairs or rn naRirg periotic: payatenta to contractor
or workers who are making repairs ordered by the Housing Inspector after inspecti,
9.31.9/9.31.10/9.31.11
;:d Lpproval of all such repairs by the I .3ir.j Inspector, or
2. utility bills for which tie: operator is obligated ani a showing, upon suf-
ficient evidence, that the operntor is unable to pay the bills.
E. At the e1^.d of the period speciLod in the notice given in :section 9.31.9C the
llotLdng Inspector shall reinrpert thq 14alling anti if s/he finds that the condi-
tions and practices specified in the n-tioe have been corrected s/he shall, upon
application and payment of fee by the operator, issue a permit for the dwelling.
VNen the dwelling bas been cr.-d.fied a3 fit for human habitation all rent remain-
ing in the escrow account shall be paid to the operator, except that ite City
shall apply any interest from the eS=. La:ount to defray the actual oost of ad-
ministering the rent withholding prngrLp..
F. No action taken by the City under this Section shall in any way limit any other
remedies available to the tenant under this ordinance or under any older ordinance
statute, or rule of law.
Q 9.31.10. receivership.
A If the Sousing Inspex.'tor finds upon re-inspecticn, as provided in Section
9.31.9.E that the conditions and practices specified in the notice have not been
corrected or if there is sufficient evidence at any time that the operator is un-
willing or unable to make the correctic ;, the Housing Inspector or any officer
&--signated by the City for this purpose shall »ply to the district court for an
order authorizing him/her to execute and carry out the provisions of said notice
and to correct all violations specified to said notice.
B. Upon obtaining an onler from the cumrt the responsible officer shall g3.rna
notice to the operator of the intention tr make such repairs or to tapas other cor-
rective action.
C. Every operabor of a dwelling unit who has received notice of the intention
of the City to make repairs or to take other corrective action shall give entry ✓
and free access to the agent of the City for the purpose of making such repairs.
Any c1r_rator who refuses, inpodes, interferes with, hirders, or obstructs entry by
such agent pursuant to a oourt order and a notice of intention to make repairs or
take other corrective action shall be subject to a civil pmalty of rut less than
25 nor more than 100 dollars for each such failure to comtjly with this paragraph.
Each day on which access is denied shall constitute a separate violation of this
provision.
D. bbr the purposes of this SectiLni officer shall use all rents in the es-
crow account for the dwelling and nary uie any City furls and funds frena State or
Federal grants where the rehabilitation of rental housing is specified as a permit-
ted or recpai.red use.
E. The operator of the dwelling C.',d _n c§selling and premises shall be liable
for all costs, expenses, and disbureemenus paid or incurred by the City and the re-
sponsible officer in any action purnant to this Section. For the recovery of sxah
costs, expesnees, or disbursements the City may bring an action in any court of cae-
petent civil jurisdiction.
F. No action takers by the City under this Section shall in any way limit any
other ramedies available to the tenant under this ordinance or under any other ord`_
nance, statute, or rule of law.
9.31.11. Appeals. Chapter 9.30 of the Municipal Code is hereby amended by striking
r^,ec ns .3B and 9.30.3C and insertrnh in lieu thereof the fol1QdN:
9.30.3B. As of the eff3ctive date of Chapter 9.31, the Residential Iand]ard and Ten-
ant ordinance, the terror of all members of the Mousing Appeals Board shall expire and
the City Council shall make new appointments subject to the following provisions:
1. The Board shall be composed of seven. mrsdxwo. Three members shall be tenants ✓
and no more than three membas shall have rm di_-ect or indirect, f4ryru940 interest
in residential rental housing.
12
0 0
I ` 9.31.11/9.31.12/9.31.13/9.31.19
l.. The first four nr:nt�:rn app„inter] rh. [I .;,:rA. for two years and the other
three: memburs for one year.
3. Vacancies occurring durirri a tarn shall be filled for the rmniMer of that
term.
4. At the expiration of any term a raw aplointmunt stall be made for a term of
t„c years.
5. The Board ehal1 hear appeals in :c...,,ection with any notice issued pursuant
to subsections 9.30.3C, 9.30.3D, 9.30.3E, 9.30.98, 9.30.9E, and 9.30.10E of this
Chapter and Sections 9.31.7, 9.31.9, and 9.31.10 of the Residential Landlord and
vt nant ordinance.
6. nm Board shall periodically rnvicw, assess, and make reoartnerdetions to
the Council concerning poldrinn, prrredur,:s, and regulations necessary to the ad-
ministration and enforcen*!nl ..f ;his Chapter and Chapter 9.31.
9.30.3C. Any person affectod by any notice which has been issued in connection wit.
the ennforcemarnt of any provisiun p-cified in subsection 9.30.3B may request, and
shall be grunted, a hearing on thr,inatter before the Housing .'appeals Board provided
that such person shall file in the office of the Housing Inspector a written peti-
tion requesting such hearing and settinq fort, a brief statumu'. of the grceuds
therefor within ten days after the date the notice was sen od. Brunn receipt of
sinh petition, the Housing Inspector shall :;,.t a time: and place for such hearing,
shall give the petitioner and other affected la -:ties written notice thereof, and
shall, except in ease of raw:rq„ncy as pmviried in 9.30.3F, tike no further enforce-
m:nt action pending the outzxm, of the hearing. At mucin hearing, the petitioner
shall be given an opportunity to be heard riod to slow why much notice should ba
`- rindified or withdrawn and any other affrctA>1 party sl:Sl be given an opportunity
Ir, lx heard and to show why such notice should be sustained, nrolified, or with-
drawn. The hearing shall be ommenred not later than twenty days fter the date
on which the petition was filed pr.)vided that upon application of the petitioner
the Housing Appeals Board may postpone the date of the hearing for a rh,,asonable
tJne, not to exceed thirty days, if in tl,e Board's judgement the petitioner has
submitted a good and sufficient reason for su-h postpomem.nt.
9.31.12. Panedies of the operator. If theru is a substzn'_ial nnoncarnpliance by the
tenant with renta agreement or. with Cection 9.31.5 or with any other ordina ncr:
or statute the operator has the rcac,"P-c provided by the applicable ordinance, sta-
tute, or rule of law.
-- 9.31.13. Pemedies of the CX)erator and the Tenai,t for Abuse of Access.
A. If the tenant refuses to alloy ],_wY1;1access, the cperator�isnall be entitled
to injunctive relief to eournl access or 1-,17 termirnnba the rental agrrrment. In ei-
ther case the operator shall t.: ,:nti.t;c(: rn i.rrnger..
B. If the operator nL&cs ,an unlawful c•nLry or a lawful entry in an unnrrasonabl.e
canner or makes repeated del k71Y15 for entry otherwise lawful but which have tl-e ef-
fect of unreasonably harrassing the ttanannt, the tenant shall be entitled to injunc-
tive relief to prevent tl.e recurrence: of the conduct or to terminate thu rental ag-
Feenrrnt. In either case the tonrtt shall be entitled to damages.
9.31.19. Retaliatory Conc:tu.-t Rrohibi'cd.
A. An operator may not retaliate t;% increasing rent or decreasing services or
by bringing or threatening to bring an ,.::tion for possession or by refusal to renew
a rental agreement or by abuse of access or 1.1 .,-,y other retaliatory conduct after:
1. the tenant has ernplai.ned in gorxl faith to a gcr)ermrntal agency chargod
with responsibility for cnforourcnt of a building or housing tndn of a defcrt which
is, in his/her best judgment, a violation applicable to the lirwines, or
2. the tenant has cUuplaired to t}-
, o,,,rator of a breach of the rental agree -
rent or of any violation of this ordinancr., or
3. the tenant has organized or beome a Maniber of a tenants' union or similar
no
9.31.14/9.31.15
organization, or
4. the tenant has tried in any lawful manner, alone or in concert with others,
to enforce any rights provided under the rental agreement, this ordinance, or any
other applicable statute, ordinanoe, or rule of law.
E. If the operator acts in violation of subsection A., the tenant is entitled
to appropriate damages arca injunctive relief and has a defense in any action
against him/her for possession. In an action by or against the tenant, the occur -
area of any action protected by this Section within one year before the alleged
act of retaliation creates a rebuttable pres:m%Ydm that the operator's conduct
was in retaliation. "Presuaptim" means that the trier of fact must find the exis-
tence of the fact presumed unless and until evidence is introduced which would sup-
port a finding of its nonexistence.
C. In an action by or against the tenant where the operator's action for poses-
sion or refusal to renew the rental agreement or other alleged retaliat=Y conduct
is in issue, the operator may overcome the pree:mptim in subsection B. only upon a
showing that his/her conduct was for just cause and that his/her conduct would have
been the same even in the absence of the tenant's protected activity.
9.31.15. Effective Date, AePealer, Savings clause, Seyer=I-J"�y.
A. shall beooms affective anter nol u� passa9s, approvalt
and publication as required by law. It applies to rental agreacents entered into
or attended or renewed on and after that date.
D. The following ordinances and parts of ordinances are herd:y amended: Chap-
ter 9.30 and Chapter 10.2 of the maicipal Code, as specified in this ordinance.
C. Transactions entered into before the effective date of this ordinance and
not extended or renewed on and after that date, and the rights, duties, and inter-
ests flowing fran them remain valid. and may be terminated, ourpleted, cm matsd,
or enforced as required or permitted by any ordinaries a ended or repealed by this
ordinance as though the repeal or amerdment had not occurred.
D. If any provision of this ordinance or the application thereof to any person
or circumstance is held invalid, the invalidity does not affect other provisions
or application of this ordinance which can be given effect without the invalid pro-
vision or application, and to this and the provisions of this oadinatma a=e +r4w-
able
J
J% J .'J J J 1J Y7 r.+ j 1s
,+ r• r � 1
DATE: :larch 20, 1975
TO: John Hayek, City Attorney
F:20A.,1: Tony Kushnir, Asst. City Attorney
R:: Landlord -Tenant ordinance
The feasibility of enacting a landlord -tenant code for the City of
Iowa City has been referred to me for consideration. Upon studying various
legal comilentaries and cases I have come to the following conclusions.
1. Under "home rule" the City Council has the power to act in certain
areas without statutory authority from the State Legislature.
2.The landlord -tenant relationship is a civil relationship.
3. Under "home rule" the City does not have the power to impose rent 1
controls or regulate the type of lease agreements.
4. The City Council under "home rale" does have the power to provide
for rent withholding where the landlord fails to maintain the prenises as
required by housing code, or ordinances prohibiting retalitory evictions
for the reporting of housing code violations, and similar regulations
connected with an independent City power.
Basically stated home rule is a theory that municipalities should
be free to regulate their own municipal affairs without interference by
the State.l The methods for achieving home rule in the states that have
home rule have been varied and conscquantly in determining specific
questions involving home rule in different states it is necessary to
analyze problems with regard to the particular language used in the "ho.me
rule_ grant". Minor differences in terminology can produce significant
differences in the meaning of home rule in various states.2 Home rule
grants were divided into two areas - constitutional home rule or 13gislative
hole rule. The present Iowa home rule grant is of a Constitutional nature
of the limited self-executing category. In other words, the Iowa cities
are given the power to deal with municipal affairs independent of prior
approval from the state -4
The "home rule bill" passed in 1969 and which is to take effect in
July, 1975, implements the Constitutional Amendment. The scope of the
powers of Iowa cities is stated in 364.1 of the Code of Iowa, 1975.5 As
seen from the last sentence in 364.1 of the Code of Iowa, 1975, cities may
not enact private or civil law governing civil relationships except as
� incident to an independent municipal power. broadly defined, private low
7 is the,.law governing civil relationships including such fields as contract,
tort, and property law.6 Tha landlord -tenant relationship would certainly
ea: within this definition as it is a contractual relationship bet:••oe•n
t`re tenant and landlord involving prop••arty. • So the first question that
A� could come to note is whether this exception to the broad powers given to
A •
If rent cot:trol is not within ,i muni.cipality'S po'..er, is there any area
which nay directly or indirectly affect Lha landlord -tenant relationship which
i:; a valid exercise of powt!r under home rule. Case law tuid legal commentators
to ;:gree that municipalities can intervene in the landlord -tenant area
to enforc:• housing codes. 17
F!e:::icipal ordinances providing for rent withholding where the landlord
fails to maintain the premises as required by housing cod=s, or ordinances
prohibiting retaliatory evictions for the reporting of housing coda violations
are possible steps that Iowa municipalities can take. The courts have indi-
cated that they may be receptive to ordinances enacted in response to this
problem. In 6:ease v_ Fox the courts have stated that rent is not collectible
in cases where the premises rented are not habitable.14 In other cases a
landlord was prohibited from evicting a tenant for reporting housing codes to
the authorities.15 By stating that a tenant can withhold rent and prohibiting
retalitory evictions, the courts have indicated their recognition of the need
for more effective remedies to reduce housing code violations.
Since housing codes are enacted to protect the occupants against injury
from fire, badly lighted hallways, and similar hazards they are within a
municipality's police powers for the protection of the public health and
safety. The incursion into the civil relationship of the landlord -tenant
can be seen as incidental to a more effective enforcement of the housing code.
i,
0 0
Iowa ruin icipaIities prohibits tham from enacting ordinances regardirnr
landlord -tenant relationships. Tii_ .:newer La this question lies rn. r+: with
what typa of ordinance it is and in what wny d•:,^.0 it affect the laudlord-
teaant relationship.
A.; stated in 364.1 of the Cod_ of Io:ra, 1975, a municipality cannot
ensct an ordinance which sole purpose is to affect the landlord -tenant rela-
tionship. Examples of ordinances of this type would be requiring certain
provisions in the lease, or require leasehold .interests. to be written. Such
ordinances could create different laws in different municipalities the end
product of which would result in a chaotic and disarrayed system of laws.
Rent control is another type of ordinance that has a bearing upon the
landlord -tenant relationship. There is an argunent that even though it
directly affects a principal aspect of the landlord -tenant relatior.ship it
is incident to an exercise of an independent municipal power. This indepen-
dent nunicipal power is to provide for the general welfare by providing
shelter at a reasonable cost -8 Courts have reacted to this argument with
little unanimity. Some courts have recognized this argument and construed
the municipality's general police powers -broadly and thus upheld such ordi-
nances.9 Others have held that rent control is a landlord -tenant concern
hence a civil relationship, hence a statewide concern and that there is a '
serious intervention in such a relationship and thus the general police
powers do not include the power to control rents.10
The divargenc:: of th_;e views shoos that a municipality's ponder to
control rents varies from state to state depending upon the home rule grant
and the judicial inLerpre ta Lion of that grant. In Massachusetts, the home
v rule grant is similar to Iowa's in that it grants ncnicipalities broad powers
with the exception to private law governing civil relationships unless
incident to some independent municipal power. In a court case testing whether
a municipality possesses power to control rents as part of a broadly, construed
general. welfare power, the court ruled that it has no such power. 11 The court
stated that rent control is an objective in itself designed,to keep rents at
reasonable levels. It construed general welfare narrowly stating that it is
a contradiction to state that an ordin;Lnce, the principal objective of tihich
is to control rent, is also marely incidental to the exercise of an indepen=
dent municipal power to control. rents.12 Looking at this case it seaas that
there is precedent for a ruling that without a specific grant from the
legislature, the enactment is not within home rule.
Besides the private law exception, there may be other difficulties a rent
control ordinance may encounter. As the Constitutional Amendment and S 364.1
point out, cities are granted broad powers to enact ordinances governing local
concerns. The issue of whether rent control is a statewide concern can be
raised. Regulations of rent in one corrunity may have impact elsewhere on
land use, new housing construction, the mortgage market and other similar
matters. This may certainly be an area for the Legislature if it deals with
rent control to impose general restrictions and conditions on local rent
control. by opinion, given the case involving a simllar home rule grant and
other mentioned considerations, would be that rent control is not witi,in• the
municipality's power under tome rule.
T
• •
AUTHORITIES
I r:[,tc, Hjme Rule: A solution for Municipal Problems, 1.G tayo. B.J. 47, 52 (1961).
2 See 'iax. Const., t,rC 11, 5 5, Minn. Const., net 11, 9 3, Ore. Const., art. 11,
S 2, Colo. Const., art. XX, B 6-
3 See Iowa Const., art. III, S 40 (1968)•
4 For a discussion of the Iowa Nome Rule Amendment as well as a brief history
of home rule in Iowa see Sam F. Scheidler, Survey of Iowa Law, Implementation
of Constitutional Home Rule in Iowa, 22 Drake L.R. 294. .
5
A city may, e>:cept as expressly limited by the Constitution, and if not incon-
sistent with the laws of the general assembly, exercise any power and perform
any function it deems appropriate to protect and preserve the rights, privileges,
and property of the city of of its residents, and to preserve and improve the
peace, safety, health, welfare, comfort, and convenience of its residents.
This grant of home rule powers does not include the power to enact private or
civil law governing civil relationships, except as incident to an exercise
of an independent city power.
6 Comment, Municipal Home Rule Power: Impact on Private Legal Relationships •!
56 Ia. L.R. 631.
7 Marshall House Inc. v. Rent Review and Grievance Board of Brookline et al., 260
I N.E.2d 200 (1972). See Comment, 56 Ia. L.R. 631.
8 1•Iarshall House Inc. v. Rent Review and Grievance Board of Brookline et al., 260
N.E.2d 200 �(1970)-
9
1970).9 warren v City of Philadelphia, 382 Pa. 380, 394; 115 A.2d 218, 221 (1955),
Heub ck v Mayor and City Council of Baltimore, 205 1 -id. 203, 210; 107 A2d 99,
103 (1954). See also 6 h:cQuillin, note 37, at 8 24.44.
10 Old Colon Gard:! -ns In^ v. City of Stando_rd, 147 Conn. 60, 63; 156 A.21 515,
} nt Review and Grievance Board of 9rooklin
< Marshall (louse In
c. v. Re
195J
516 ( )
et al, 260 N.E.2d 200 (tyiu).
11 Marshall Nouse inc. V. Rent Review and Grievance Board of Brookline et all,
N.E.2d 200 (1970)-
12 Ibid., at 207.
13 Ibid.', at 206.
14 My ate! V. Fox, 200 N.17.2d 791 (1972).
15 Edwards v. Habib, 397 F.2d 687, 699 (D.C. Cir. 1968). Although the housing
code enacted here was by statute there is no reason to believe that courts
will differentiate_ between those enacted by ordinance and those by statute.
WN111112
260
0
E
(/cym."xu C]
• 1 • VIC CEMER. 110E W�YI✓+Gip/ /f.
(/(^/(//j////
IOWA G}Y, IOWA U240
ry
s
IPW Of 1, 10•Y•
I.N•I II11
March 8, 1977
Mr. Harry Baum
1208 Burlington St.
Iowa City, Iowa 52240
RE: proposed Landlord -Tenant Ordinance
Dear Mr. Baum:
I have been asked by John Hayek, City Attorney, to review the proposed
"residential landlord and tenant ordinance" which has been submitted to the
City Council for initiative pursuant to Article VII of the Home Rule
Charter of the City of Iowa City, Iowa. In reviewing the ordinance I find
the proposal is directed toward residential rental housing in Iowa City
and is quite crnprehensive in nature. It states what provisions are to be
included in any rental agreement, directs the type of tenancies which are
to be allowed in Iowa City, the obligations of both the landlord and tenant,
and provides remedies for breach thereof. Before going into the proposal
itself I would like to outline the general principles surrounding a munici-
pality's ability to act in certain areas without statutory authority from
the State Legislature.
The powers of municipalities are established in the 1968 amendments to the
Iowa Constitution and in Chapter 364 of the Code of Iowa, 1975. The'Hcre
Rule amendment and Chapter 364 present significant changes from prior law
which held that in Iowa a municipality could exercise only those powers
specifically granted, necessarily implied or indispensable to the municipal
cobporation. The 1968 anrendment to the Iowa Constitution provides in part:
"Municipal corporations are granted Hare Rule power and authority, not
inconsistent with the laws of the General Assembly, to determine their local
affairs and government, except that they shall not have the power to levy
any tax unless expressly authorized by the.General Assembly. The rule or
proposition of law that a municipal corporation possesses and can exercise
only those powers granted in express words is not a part of the law of this
state." Further, in Chapter 364, Code of Iowa (1975), the Legislature directs
that: .IIA city may, except as expressly limited by the Constitution, and if
not inconsistent with the laws of the General Assembly, exercise any poser
and perform any function it deems appropriate to protect and preserve the
rights, privileges, and property of the City or of its residents, and to
preserve and improve the peace, safety, health, welfare, comfort and conven-
ience of its residents." The Legislature has made it clear that in the
absence of specific denial or proe:ption, municipalities are only limited by
0 0
the state and federal constitutions. Chapter 364 goes on to set limita-
tions upon municipal power, one of which states as followsn "This grant
of home rule power does not include the poorer to enact private or civil
law governing civil relationships, except as incident to an exercise of an
independent city power."
In analyzing this grant of hcme rule power caution should be taken in oomr-
paring home rule grants to municipalities in other states. Basically stated
home rule is a theory that municipalities should be free to regulate their
own municipal affairs without interference by the state. The methods for
achieving ham rule in the states that have enacted it have been varied and
consequently in determing specific questions involving hone rule in different
states, it is necessary to analyze the problems with regard to the particu-
lar language used in the "home rule grant." Minor differences in terminology
can produce significant differences in the neaning of home rule in various
states. Home rule grants are divided into two areas - constitutional home
rule and legislative hart? rule. The present Iowa hare rule grant is of a
constitutional nature of the limited self-executing category. In other
words, the Iowa municipalities are given the power to deal with municipal
affairs independent of prior approval fran the state.
As seen, cities may not enact private or civil law governing civil relation-
ships except as incident to an independent municipal power. Broadly defined,
private law is the law governing civil relationships including such fields
as contract, tort, and property law, and the provision is a recognition of
the fact that laws governing relationships between private parties are more
properly a subject of state legislation which would produce uniformity in
the treatment of such relationships. For example, the law of wills, con-
tracts, or the law of descent and distribution should not be left to local
devision as the end results would be a chaotic and endless variety of private
law. The landlord -tenant relationship would certainly cane within this
definition as it is a contractual relationship between the tenant and land-
lord involving property.
In reviewing the proposed ordinance and applying the above principles, I can
see potential problems based generally upon the prohibition of interfering
with private contractual relationships except where incident to an indepen-
dent City power in connection with the following sections:
Article I, part III: Sections 1.302, 1.303;
Article I, part IV: Sections 1.104, 1.402, 1.403(a)(2), 1.403(a) (3),
1.403(a)(4), 1.403(b), 1.403(c), 1.404, 1.405;
Article II: Sections 2.101, 2.103, 2.105(b), 2.106;
Article IV: Sections 4.101, 4.102, 4.105, 4.106, 4.107, 4.201, 4.202,
4.301, 4.302.
in briefly reviewing the proposed ordinance it seem to me that the above
sections may very well be held by a court reviewing the ordinance to be
attempts to legislate in the area of private contracts which are not suffi-
ciently related to the exercise of an independent city power to be upheld.
\..
Iloolee,
202 111- • 240 NORTH EASTEI: 1 REPORTER. :',I SERIFS
no Mnh•.I.wdm;: .r,, i.e bdlll 1roe l.n •n of
byl.m, hoer pnn'isiu.. troul.l fall wLru
rent conb..l .rrlirm of Irvlatc wen• rlr•,
clarrd m,.,�id. ..\LG. L..\J'nna. :n'1 w).
§§ 7(5), h.
JamCo. Is. N. ( In ir. It ... I ur1 I ` I rphru II.
Olcskry, It— twi, wash bnu) Lo tort Ialrr r.
I- V. it .11. Itr•.oro 1'\l- hr•„tl II. I:II
laglian. Ir, Ih,.ton, inti hunt for hent
Review :ul,l ririrvanoo- ll,mrd •d Be.... ow
and ea"I br r.
Joseph I. Ihirley, I`irst A%s t. Au). lira.,
and Edward I.. Schw•erlr, Asst. Any. Gen.,
for she :ills. (;en.
Before, SPAI.I)INC, IWI If:'R. KIRK,
51'IH(itil., REARDON, :wd QU1R M.
))•
CUTTI.R., Judice.
Tile plaintiff 01.irsh:d Ilnnse) varus
more Icor le -n onus of hnuvup accwuuurl.
dalioos u: 1; oaklulc. It .tvk, dclarllory
relief dg.,m.I Ilse hmlrd and Ill, Inwll 1'VII-
ecruing al;. X.XV (tile hydaw) of Ihr
firuol3me I.; I.ns s, rnlydr,l "I'nfair and
Unr(m+onnldc formal le.mirrs uI housing;
Aeeomino,Ial jinn." 'I'hc pleadings, by
agreement of the )narked, ronstitntr :I case
staled. Tile ca.c has Leen reported with.
out d('cisiuu by a Superior Court judge,
who grmlcd (by an interlocutory decree
front which the I,mu'd and the Own ap.
pealed) a preliminary injunction prcvcnt-
ing the distribution to landlords in the
2. The loph%v then prnvidvx that the Iwnrd
nug rh•nl will rroneptnlulx nMnn rent..
11,11-1 Illi -mc•, ,sake fiadillp, ,,,it enle,
order•. Sen'h on 'en'rh,r unto' rnquirn
heat d,. In n•ll.ml I"tl deuuwd, urr. pt, or
reach. is .....t file 11... I....
of n)r-rind iinnxing ure,It ..... imex las
err".., ill au nurtnud "hill, Ili. l:rl...o,l
shoo ,!.I"mine• to, h,. Nir uml reoxvnuld,,
used••: I In•, t ........ .Iran 1 amt...:. tr•'ef).
svhul Ir.�_iuc rondo sena Ihnll 1„ rvor
mrbd ' n.nl ilial •rntirr• .bull
Ix• had bel 1•, Ihr mmol ill 111e nnnd
herrn of cc rI.un (nous requash ng ase farina.
into mcnlowo-,I below.
Thr (own nn lune 14, 1'169, purp.,rtrd Io
ad"I't the h, I..", sxbn h Ile. ht,v .qq .nrd
h) Ibr _\w�wy_ �d5llFldir,.. Ih•. L....
ll� and to make such other
or "re aMR imay dccm just and proper,
which may include an. order that the
landlord nol • • receive rent for
Ile occupation of specified
loosing accunm odalunls to rscess of an
amount whidl It shall determine to be fair
and reasonable under the clrcomstanccs,
such entergenp' • • • will produce
scrlmts Iucelty Io the public health, safely
and general welfare of the eiuicns of the
to%%n.'
Section 3(e) creates a board of seven
mcrnl,crs (th(- town's assessor and its build-
ing nnnuus.o,ner, Ihrce "representatives of
the public interest;' one "representative of
landlords," and one "representative of tell -
ants") to deal with rent review matters.
The board may receive complaints and
review propused rent increases (sec § 3
(b] and )e]), and make studies on rent
levels. See § 3(e). The board may deter-
mine what rent is "fair and reasonable
under the circumstances."*'
al- drlrnnined. Th,- • • tilde,
shall not rrrynirr• rhe landlord br
rrcrlre cern for eperiflM bowing m'."m.
malntluoa Rini Ix ler• Ibnn it,,. rests • '
reerh'Ivl fur .awls 1"nuln[ arreoomalm
liana oil Jurnurry 1. 10ln" S,olun I;
(hl pruvider Is le -mill)' of roll nose than
*) fur • %whiinu ser tiny order of Ilse
Word and far rennin other siohlimm
iurluding bubrre eenwnulhly it, file voll
I lee ban rd "..tell hr fururn l icor nr Ir
llr)nnrd irony re.lulre puraunnl lo" 1 9tfl.
m
'4•d :
Uro\•'
tow.
omen;
due t
,dcr:,:
atioll ,
evalll r
soleal,.',
Ices n,
I other
prnprr.
at th
rot h•r
,cci Lr•I
hr i;m
,fA+.tr1'
satsl)
of ihr
IiOUSI., I. v. RENT REV. t. OI:II:V. DD. OF )%ICOOICLINE 11nse. 203
I 11 cnntrilldiml
;gg,1h
Incident ton
\'`u , rltool 1>
-111
loft ml ndrIn-mleut mmmi,palpo
„< pn••vut
jc', \rich s Uwluch ) he
exercise
Tho env Ilius requtres our decision
e
-;rtn
ud may. nn nose than once cath year,
1111!-
er.”
ill ol�er of
of I'Wei CUII, Cfllll:g \w 111C'L
�1-
(C all LImllOrd•, whose dgnreg"Iv
huu•ing
31,
J,tI \ 1f 450,
Ilu• justiers, ,1 r6 }lass.—. -
�. re len Imus of
• to file with the
we lan•c uo adw we l,ecause of the absence
. See art. 85 oft e
•.., :omodaInto,
form supphrd Ly the
of .1 "solemn occasion.
of the
std. upwl a
their
AmcudmCnts to the constitution
,lard, information conccrnlog
the rent
cu
Ilh
,•Ing :ceonitnn,lations, including
being chd (ur rad, nun, the
:vgc
%%'11 quola•lnph:yrs supplied) pertlocnl
.rrnitly n
of rooms in Cach omit, the unli,er
hurunns of art. R9. Section I provides, In
to
•,Imher
dC'np\'ing Carl, 111111, and wheth
putt, "It IS the 111te tion of tills article
I$SdnS
• • the tenancy IS Moder :I wrltle"
rcafflrlll the ' ' traditional liberties
nnulurt Of
A (ono provided fur filing ("Ilmler
of the pnq,Ic \\'nil respect to the
r,sr."
of perjury") inform., l„II under
Uneir feral goterudrul, :old to gr..ntRS(
,natty
,Ili) directs each landlord to give the
its
confirm to the people of every
in loco!
}Ir<ss of each building, the dale n(
town the right of sel(•govenunent
of this
or last 51lbslanl I'll icnu 11311011.
mallers, 5nbiccl to the provisions
,.nstructiun
':r date of its acquisition, the numler of
"(uJtili'
article and to such standards and require -
;'.ars and rentable units, and the
oleos as the Yeneral clnlrl may establish
of
rs supplied by the landlord without
-
by haw in accordance with the pro",stons
ams a broad
:huge.” It also requires, fur Cach apart
this an1Ae;' Sccuml G cool
try
•,rnt, its number, sate, monthly relit fan of
grant of pow, r, to cities andunvns..,
naober 1, i'Ns9), lease expiration date,
• • r scowl, play, by the aduptiuu
•rem of lease land whether the lease, if
of Intal ' • ' by-laws, Cxrlrne any
tax Claus'), the parking
' • • which the general court
any, contains a
and the type of oerupancy.
inner
has power to confer upon it, u•6ich it not
;ro•ided,
or laws
'
rl,l ,nal lneac p-".•+ �••__.
,,+Iwrr to adopt a rent control I y.law with-
•,ut further authorization (by the Legisla-
•ie or ntherwise) than is (nund in § G;
I. I (c) that nothing in al, 89, § i, so
ods the power granted tothe town by
S 6 as to preclude the adoptsn(, of the by-
:aw or to impair its validity. 'fhe Attorney
Grncral makes snbsulntially similar can
+anions, Marslul Ilollse. on the 01111•
takes the position that the by -11w i
-Aalid because of art. 89, § i. nhich state
"at nothing in art. 89 grants to "all
' town the power • • ' ( i) t
alt private or civil law' I:.,vcrnitlk CIV
Infan.nsl„Il :rill n
enacted by the general Conti in conform-
,ty with pnwrts reservell to the general
court by S".1iml eight, :ail which is -It
denied ' ' • to the '
by
its charter • 7•I” powers, which
at first ghmee seen, to he granted by § G,
are hintled substantially by § i, which
reads: "Nothing in this article jfs')] shall
• • town
be dcemcJ to grant to any •
the power In (1) regulate clec11m15
(2) to Iccy ' taxes; (d) to bor•
raw nnmey or pledge the eredl of the
• for:n; (ai to dol,•r.r u( pa14. land;
r
s
e ,C am prove a 0r
s tat Mmentof a felony or to impose
Y itnprisntlmell as a punishment for any
0 violation of law; provided, however, that
it the lorey"iny rmmnrrated pna•cra Indy be
a. >Imv..ldr.tih. I1PCI11 llf,3.
�..�_... .ter::�,I.r-•.. �. .. .�^^•r,-.__^•"-"'".... _.�•.ir�.r•
r -•
I \i
201 M-4. 200 14ORTII EM,"I' IN ItEI'URTER, 2d SERIES
yranh'J by Ihr ginerit ,Currui coobirm
ity I% Oh the const.1111 urn and %, fill the posh
cis Icsrrrel lis the 1•rnrfal conn Iry st-clunl
x11!111 • • $eclom 8 it. flors crf Ltrn
IegIII.,I I,c pnwrrs Iv,cr rd 1u :un1 )o,.+C c,I
by file General I purl. Nu romwolom ap.
I,( os In be made that there 1s :mc learns
of authority nlhrr Ib.w art. 8Y, $ 6, for Ihr
Inw•1i s anion If, cnactoll: Ills be Lis'.
1. Anrbigmlc rai.h (.n ac pomlul rntt
in Atimer of Ihr lustlres, 356 Mass, —,
,_._ I,) 250 N,F..2.1 1511 concerning Ihr mean-
ing of the itahriird language if § 7(5).
This moluguity is not substantially clari-
fied by examination of the historical back.
ground of art. 89. Sce 1005 Scnatr Doc.
No. 950, pp. 9, 21. 114, 131; 19l,Lr Senate
Doc. No. 946, p. 20; Amerism Municipal
Assn., Mudcl Constitutional Provisions for
Municipal Ilume Role (19.53); I'nrdham,
Hoon- kulr-A>IA Model, 41 Nall. Munici-
pal Ree. 137, 142; S;mdahm, The Limits
of Muoieipal Power :older IIonr Rule,
48 Mino.l.Rev. 613, 1,7.14,79; ( ;rrr :u1d
Cumin, IIonic Rode Il:mean of Poo, A
(wits, I:nstnn College and Iturt'.n1 of Govt.
Research, U. of Arass.). 33.1 Therr is nn
very clear discussion of what is now art.
99, § 7(5). The most cnmph9c ;u1:d)'sis
is Ilia[ of Professor sandalow fat pp. 676--
677) and even that discussion. which at
tempts thoughtfully to resolve Qu• are-
biguitirs, scents to raise inner questions
than it answers.c Professor Fordham, in
b. NIn..Adv.8h. OfRIO) )14.5, 1149.
7. Enrli.-r nitempl+ tit uMnining a huum rule
I ..... ohnr•nl un• I,-,.us.rd not na ly in In•...
Frunte d1e•uuumn bnf nlvn in 1011 Sr mor
Ibe \u,6N1, pp. IIG-:17; llh;' S, nn Ie Phu,
Sa,f.Sfl. Ser fur general di ern..m".. An.
liruu, Mumivip:d Ibrlx.raliun Law, e.:1,
rap. f 5.111, uud c. n; Panlondingh:un.
)Innl,•ipal Ilumr Ilnlr in Ibr I'niIIA
Notice, 111 \\'m. nml Mary L.IL•v. 64:1,
3III,
4. Pole.+nr 8nrohlow 1 --int. out Oro it.,
I:mgnnge, now fonud in 1 il'.9. n•Inbng
In "Jokolr III. makaw LI urn nnu'ipa l ny
it d,•y,nulrut 131.1. uul mdv Ion• wnlrurr
of an iul.-I Fob -til numi.ipnl p... rr bet
'm1 rn rti.r of m1 ind•p. it 1. 0 tomsI. ...:d
p.,we r.' lis si." of t.I. r. nal r. o,, til nod
If-, dl:.nnsinn of the par Uvular laugu.rgr,
al,,, Iravvs the uncertain['' mirv,olved. See
41 Nail. Municipal Rev 1.17, 112, Sup"
Ile "*this m a ph:ar n( home ode
w4o.h b.0 not 1!enrrAly been ad,•gnaolo
rnnsid, led. ! 1 0,41 viol sroh tos
1'dig,
�it
1 c Vj1L., 11 W- f.0• CaaC2 a N41
S. for CKUW"
ance by coahling home rule units to coact
private Luc only as an incident to the exer.
cise of some independem municipal pow.
er.•' This court, as with respect to other
parts of art. 89 (sec Opinion of the Jus-
tice, 35(, Mass. —, ---e 250 N.L?d
425; Opinion of the Jnsliees, .156 Mass.
—, ----° 250 N.F.2d 547; Opinion
of Ihr• lusticrs, -- Mass. — —)I 258
N.1>.61 731, thus Is !acrd with interpreting
omit awl eery general language concerning
which their exist only inconclusive indica•
tions concerning the intentions of the
draftsmen.
)1-3) 2. It is within the jumer of
[he I.rl;islat tire, where there is reasonable
bast, if, fact for such a determination,
to conclude that an emergency exists in
certain areas with respect to residential
housing and to take action "in the exercise
Mori, 'independent muni,•ilml poll-er' tire-
xun,ably mrnnn n Iowrr other Ihnn (hut
of ,vnelhlg lomae Inw, the most likrl)'
1+niN r,h1lon Ix Ilett privet,•
law ma)' b,.-ou'led only If it 1. if, all of
come rounlril-al polwy or pmgnm eImh
in npre.,r,vl, at Irn•t in part. b) m•aru
ulb.a than Ibr rrgol31,,m of purel) ,'oil
rehIiuu4u:.•" The probh•m in 11.1
prrretit row nriw•+, of n, 'oIf Ix•rnlf•r
whatr,tr Inbry do- tnwu !.., ❑tearpinl
to carry out la (und.r the bylaw) to
be- rreruled b)Ibr din•vt rrgnlalion of
Ihr civil reintlmuhip bNwram landlord unit
n•uoul.
C. Jb1u..\dr.Nli. (101;o) 1157, 1162-1105,
d. ylv....\dr.Nh. (101:'11 1171. INo ]III,
n. )Ira_\dv.Nb. (1970) 7:'t. 72:.727.
0
0
unfair • rental pracnev" (defined
in § 2 jgl .I, tece•iviug any. "rent • • r
rxec„Irr under the cireumstattres"), to
prevent (,rr fn. 2, tupru) Ihr receipt of
such n•ni. :nut lu regulate fit,- "srn'iees
• [t(j) he furnished" for such rent.
In thrxc aspects, although we assume the
irpo•c of thus affecting life: landlord.
plant rel:dunoship to lite public, the methol
adopie•d is pnnlarily civil in that it affords
to lite I,oerd power in effect to remake,
,- o, :I," tenuivatiml of pun ll'nrbl War V. Item IAi. of Ilnpokliw. 3:11 \Inas. 1:1'2,
'1 -. LI nerd:ni„n iu yhl• n loo,rit•, n,•,• 1.^..i 1:14. 1:11 .S.I;_'d '1111,
\:qtr r. ?bn-..IdI,FL. W9,11i 111:,, liG+,
Z.
„ 41, Ito USE, 1. v. KWIT It EV. L• GILIIIV.
IID. 01' IIIt00)iLINL' SL,^. 205
,i,•.❑
pu, vf.- ul,Jnd,ug inn, lam 1,
(4,5� .l. �'fhr lu,cu mguc, Ih.11 all. Flt,
Ynlirol. to rfht','v Ihrt'inerlwnil'.
p 715), %limild he ytrlcil% eongr11cd. So
:,Unlitvd :I pnllcy of rem control
far as § / rrlmne, Spvcifnt'd silh)ccts from
• • • PIIIVrgcl,Cy Ilgl,lallon II 111.11•
the Scopf of loll lilt' Ilia l 1eg151al1,e action,
..:o(gair to • • • I'mus a,
the several rxcluaou, most be Interpreter(
r.cohl agencies the .rlhmm,lranon --f
hroadly rnmlgh ill accomplish their pur-
e. drlails uu respect to matters prniliml)
jiffies. leen-ink Ihrre i, it, bar,,, for any
,,;,;nog Ioell inirn',I." See Russell I.
IimitcJ inu•I prelan,m of the cxclusmns
.......nvr S Recr. Gen., 331 Mass. 501,
found in § 7(I), concerning elections; in
. , ;X. 1Id S.I'..1.1 3.U:' \\'e• recngoi].ed
§ 7(2). prolul,ltintf local lax It•glslatlon;
of doe ii,tiree, .ISG \lass. ----,
in § 7(3), Lith rc.prct to lorroungs; and
r .131) \.K.2,1 450, 432-153, that the
in § 7(4), in the matter of disposing of
of "§ 6 • • • standing i,y
park lands. Tic term "privair or civil
.I:eu.lge
..,.If, is broad enough it, authoriic a
law govenliug cn'll relationships' is broad
• • (low'u] to enact a rem runtrol
enough to uwlude law controlling ordinary
• • by-law. The limitation in § 7(3)
:old usual rclanunships betwern landlords
n n11:111too ly' withholds )cart of illy ;,if.
and tenants. The language is not so
con -prima
facie ronfern•d by § 6,
fined as clearly to apply only to general
r iu,ling the enacnnrm of 'private nr mil
legislation like the Uniform Commercial
.: gm'rrning civil relationships exci pt :n
Code (ser G.I.. c. 106), or the laws govenl-
,, Inci,li nt In all cm -lo • of uuhyprodrot
ung marriage (sec G.L. e. 207) or intestate
^'un.ipal power.'" In Cambridge Taxi
succession to property (see G.1.. c. 19)).
1 n, ,. City Manager of t'anlbndpt. 322
M. ort -I Ill, 7G \.E?d 133, we
[6) a. The town contends that the "by.
•...... d that. und(•r G.I,. c. 40, § 22,
lav is a pohhc ins governing the rconomlc
..•ahoriring a city pl slake ordinances for
relationship brtwcen landlords and .emus,
:Lr n'gulation of vchidt." a city might
not a lon-mv [or civil] l:nv governing
I.:, an incident to a licensing system for
civil relationships." It also is argued that
hw.11s) "fix the pairs to be charged."
it is "In suhsumce a temporary substitute
'll',r rising of rates in that case, however,
for market forl•cs • • • distorled by
,I,, incidentl to the exercise of a clearly
unusual conditions," rendering unreliable
•:rimed, dt'leg:nrd police to regulate a
the usn:d process of determining "the
'rau,pnptatiou service having some aspects
:nnounl of lent for an apartment • • •
,if a .o-ricr or public utility. The rate
by hargainmg between the landlord and
i'\Ing Nan ill illo,l .a tegolanon of a lem.
[the] letlain." The by-law gives power
"0. r1 ::;IP,: '.Ibp 1✓'t IH"'ll the t,im uprr-
in the I,na rd to re(Illirc (see § 4 (d))
;,1- .,dams r. "/Ip
a landlord o, "drsi,t from • • • (an]
unfair • rental pracnev" (defined
in § 2 jgl .I, tece•iviug any. "rent • • r
rxec„Irr under the cireumstattres"), to
prevent (,rr fn. 2, tupru) Ihr receipt of
such n•ni. :nut lu regulate fit,- "srn'iees
• [t(j) he furnished" for such rent.
In thrxc aspects, although we assume the
irpo•c of thus affecting life: landlord.
plant rel:dunoship to lite public, the methol
adopie•d is pnnlarily civil in that it affords
to lite I,oerd power in effect to remake,
,- o, :I," tenuivatiml of pun ll'nrbl War V. Item IAi. of Ilnpokliw. 3:11 \Inas. 1:1'2,
'1 -. LI nerd:ni„n iu yhl• n loo,rit•, n,•,• 1.^..i 1:14. 1:11 .S.I;_'d '1111,
\:qtr r. ?bn-..IdI,FL. W9,11i 111:,, liG+,
Z.
4
206 t6144, 200 NORTH EASTERN REPORTI:It, 2d SERIES
III im",.,rlaW tr.pr Is, Ihv palls•,• nn,
tract irvalun: a n, oaicy, The L� Lav .A,o
imposes c inuu:,1 pe rarities u, the form
of fines. Sce § 6(b).
(7) We do not regard the I, olio- ob-
jectt.es and the vznoi❑ pal it . iid crnlo.al
aspects of the I,ydaw as conclusive in Ile.
termining whether the by-law I, sctihin the
exclusion found io art. 8'm, q 7(5). The
civil, private, public, and criminal aspects
of the by -lase may. '•noel Lal" • to some ex-
tent. Cf. Garner Y.'fevnstcrs, f:hauffeurs
& helpers Laval l•nion No. 776
116 U.S. 485, 5170, 74 Skit. 161, 98 L.Ed.
228. Also the methods of carrying our
the public objrauec contained in the by-law
are predummantly civil in character and
directly affect a civil relationship.
fie) 5. The question for decision u a
relatively narrow one of applying art. 89.
§ 7(5), in a partindar situation. Dors the
by-law so directly affect Ow landlord -
tenant relationship, otherwise than ••as an
incident to an exercise of an indrpcndcnt
municipal power," as to corny within § 7
(5)? If it docs, then the n,wn had no
power to grant by the by-law the civil
powers of regulation to the board, unless
authorized in advance to do ,o "Ie, the
general court" in accordance with the pro.
viso in art. 89, § 7. If the by-law does
not come within § 7(5), the town may
have had power to adopt lire by-law. In
practical effect, the question is whether
the town had no power to enact the by-law
without prior legislative authorization, or
whether the Legislature (if it wishes til
preclude or to regulate such local rent
control provisions) must enact (either be-
fore or after the adoption of such local
provisions) appropriate general legislation
(see art. 89, § 8) forbidding or rrgulating
the adoption of such by-laws. Plainly
the Legislature, under art. 89, may forbid
the enactment or control the form of such
by-laws in sonic manner, without regard to
whether such a by-law as is before its
comes within § 7(5),
I-)] It. II I, all:l:,shat that not ronu,l
Is, in ib nahiM, a purely local f llichon
and Ilial, therefore, a town by-law, even
though it directly affects a pr!nrpal aspen
of the Lmdlord-t,naot r•latiotiOup, ie i.-
rident to an esc•rcisc of an indepcadcm
municipal power. Doubtless. under an. F9,
q 6, a tion possesses (subject to apphcallr
roost, t uuunal prusisios and 1,g islatlon)
broad powers to adapt by-laws for the pro
rection of the prune health, nmor.l,, safety,
and gi-ocral svtlfarc, of a type ,ft'n rr- `
(erred Io as the "police" power. N'r as. r
,time that the,c broad powers ootid permlt
adopting a by-law requiring landlords (sit
far as legislation docs not control the
mtmicr) to Lake particular precautions to /
protect tenants against Injury from fire, 1
badly lighted common passageways, and
similar hazards. Such by-laws, although
affecting the circumstances of a tenancy,
would to so (more clearly than in the
r:,se of the present by-law) as an incident
to the exercising of a particular aspect of
thr poliec power.
110 Rcm control, in a general sense,
is for the purpose of providing shelter
;it rca,onahlr cost for mernbrrs of the
Imbhc, a mama comprised within the braid
concept of the public welfare. Rent coll-
Inol, h,n.eccr, Is also an ubj(iticr in itself✓
designed to keep reals at reasonable levels.
Is the attempt to achieve this objective to
be viewed as merely. incident In the ex-
ercise of the whole range ofp
_the olice
pincer, or dots arl._89,_§_ 7(5), imply that
the 65PN'alC.eulLPnne_nts of the pohcc pov-
or_are to lie considered individually in -
determinulg whether the exertLiz AL one
of them enacts "civil law governing civil
vela inns Ips cxrcpt a—sran�incident to an
c`ise—oTaltt. n—'iit cpfnflsne.mum+ejpaL.{aw-
cr_'? The quoted vague lant,uage points.''
in our opinion, to viewing separately the
various component powers makm4 up the
broad police pusver, with Elie ruucquencr
that a nwnicipal civil law rq:ub,dng
civil relationship is perutssiMe (without
prior Irgiilativc authorization) only as au
incident to the exercise of some wdepovl'
nt
If,
alt.
V I .
sal•
ell t
\'t a
pen-.
Js I
Ims
I fir-
%, a. ,
',hong'
Ila no:
in r
'cet I:
\p ,11A1, 1I0Usl:, 1. v. RENT REV. It c11L1EV. B1). of BIt00KLINE ?tit"a• 207
n nh,ul :limp„ileo of the nunurll,,,I 11y e, uu p,.c nvl uu"r'\..SII IISISI,uuI-
Tu con.0 nr cul ,nb,r• •cl nvr. ,pp, Int hl.
d '
It a eeryr19udr,l'thatub,�.11 1, ul'1tr, gldatim,%wa•
„ ,••.J'n'I. ••mnlral to the pnLhr I"'” of the slate
1\,• .uuclede ill; -,it emd,l Lr. in
See TirD
Ir e,It111 a111clanl file entt'mpnrnl to
:al a bylaw, Ibt• prnnlcd uLjer ncc
\\hicll Is In c•Mllol lent
•, tit•, is also merely In%dellt til to the
..,tele of an indrpcodclll nnnueq,al
cnntn,l renis. \\'c prrcrrve na cum-
•r1d of the general moue 1p:ll p,llre
older than the regnlauon of lents
to Which such fvgtllatiol fairly conld
, Ile incidental?
Cases ill other jUl'"liclion, unller
iilrent eunsticntional or charter b -one
visions, or under different statutory
pro
,: nations. are not controlling. In Warren
.. I'hiladclphia..1K? Il,. 3N1, 384, 115 A.2d
:H, local exercise of reel control %vas
per -Under the broad pn.tiswns of a
h.,lnc rule act. largely compar l In art.
.v § 6, hill alhice, bt nn .nch t•avl,tsnm
i rnbrcl.
•. appears in art. 9'1, § 7I� I. In Il
,. Mayor K City O""led of Italllulnrc, 203
`.Ili. 203, 2(17-211, Illi :\.2d ren,
rnntrol ordinaln a o.11 held innur.i •lent
.All a statute of pcneral applicatnnl, rrcu
:I:,,ngh there appe.lred In hr iso such
ex -a, is found in ark. %0- ';70). In
,I'.•I d.
(}Jun) C.tr{ens, Ire. %'.
it,' Conn. (A, 63, 1:6 A.2d 713, ;14, charkvr
;meisions conferred "nl general terms the
;•r,\cr In protect the public health, safety
rd wd Lvt' It %vas said, --It dors not
••rrressarily follow, however, that a delc-
.;dion of police pn%eer in general terms
r r • to a municipality includes author -
art. s'1, ns nulburilirs nlmodP
fled ...Fgrst. It may oink'. 'lido diff. -r.
•n„r r%'hrtln•r n 4::rl i,•nlnr `rrr.rI, !41
heonnly gru,anl lir lural.
Sall, \luuleipal IL•v. 1:17. 142. If. lin\%'•
sur, lids roan• ins *iguiGrnnr.. o vaunnl
L...,id Ibal rrul ,au11r14 bn. uulc 1'..31..,u...,pl.orr+ %c L, Ib.r all rml•ny.ury
iu Inn. rwnmmnioy mac
In unn. lir Ir iglts.rinr ., ma. Ibr
,dntlnn rd 1„111, In Ino „nn nnnii” lila).
Intl• Itom„1 nb,••hem 1,11 land u.e, u,•'
as ded;u ed iu .cue Icg,slatiou.
jrm
V. til. I:.ill., 4;'1 \lis. 1311, all -116.
222 S.\C.2J ill (nu pn%cr to regulate real.
Jrlegutr,l bt Ihr env. even :til Incidental to
other puwcrs) . \\'agncr v, \I:q lir '%1• \lun,c-
,pal Cuue%1 ,f Newark, 24 N.J. 467, 174-
490, 132 r\ 2d 791.
112, 131 4. We allply the amLlgnuus ex-
6mon in art. It'), § 70)• in accordance
with %chat appears to es to Ile the must
probable uneeIning of the words of the ex-
clusiull, it, erpreled with rcaumable
breadth, as the nature of each Other es•
elusion indicates should be (lone. It, par-
ticular, we hold Ill -it § 715) peevrlls the
adoption of local rent control by-laws in
the al,-ence of an explicit delegation to
munic,p.ditrrs by the I.cgislatore u( pnwrr
to elrg:q;e n snch regulation of the land-
lonl-leuam n9atinnshlp, Respite the seeer-
ahihly pro%snnl of the by-law (C 'I) %cc
view § 31fl v.lnet•rning the filing of ill.
foontion, .Ind § 3(c) concerning relit level
slndies Ip• Ihr tabard, as subsidiary to and
pill , the exercise of the general
powers to iotrol rents. Thesc Patrons
thus fall (or the same ream is as the rent
control sections of the by-law.
9. \Vc have no occasion rto\v to con.
Sider what action lire I.egislalnre may take
under its general lymers and ,tiller art. 99,
§ A, In authorize action Iq. the torn. We
assume that the Legislature, if It wishes
to do so, may make an explicit and appro-
hnnxing t urmrmlinn. tlu• morn Kafir mor•
tel, fun%ef1111ring nmrli,re. till ud,•:p:n•'r
and nn• of rn•olJlug sSsb•1ns, tnnt ,uhrr
similar nlllners. \-s i, n. ,+Imide ratil.ne
udghl nm.nnnbly 1••e,l Ill.• la•Ki.lnnln•. if
II drnM with rent romrnl. (il) In I'M"
®rue rill n•strirtimrs :11111 ,volition, on Im
,..It Win ruin till. and Ihr to I:J.r inpl
n„rnnnt rirrulnslnrvws iu ,nun• Orn) au,•
runllnnnil) in .ba.rio.111119 OW "is
of m, rlu.rg,•,r,y Is -1111111'"g '"i.lnl
oud fill -luno of Path b•giAnti.m.
4
I �-
208 Sin.v. 200 NORTH EASTERN R);PORTP.R, 2d SERIES
pli:dr drlrl;ulmu of awhunly la a town
or Clly to va;cl 1,11, 1, �tlllul 1nmm.nls.
in accordance wall and subject 1.. sprnfled
statutury staada,d•. In co',% of our de.
eision that file rnelasnm in all. s't, § ;(i),
is applicable, ae need out Janus Marshal
"dome's CmaruGon Ihal nClwn in .mr
crcul Is prrlenir(f 1,y arl. 4i of tine An,end-
n,cul5 (declaring that ,n times of cn,er.
grncics "the presiding of :hailer" is a
public function, and gl"In; b. municipal.
itics power In "prm idc the sgone for their
inhabitants in such manner as the general
court shall determine").
(14J 10, A declarallun Is i. I,e made
Ihal the by -lase (art. NS\') is un•and.
The inierlaanny decree Is Af ried. Thr
ease is remanded In the Superior Court
for further proceedings enntamenu with
this opinion.
Su ordered.
o err,:v+inion.
r
Sldney J. KAGAN, trustee In hankrupicy,
V.
UNITED VACUUM APPLIANCE
CORPORATION,
Supreme Judlelm Court of mms aet... ettm,
Suffolk.
Argued Jun. 0, Itz111,
1KC11101 June 10, 1070.
Bill in equity uas filed by trustee in
bankrtPlty fur declaratory relief against
foreign corporate defendant in uhirh inter-
pretnlinn of rnnlract of rnnd,tiounl sale of
certain equil411rnt Purchased (rain defend.
ant by bankrupt was s.nngld. I hr Superior
Court, Good. J.. after hearing, •.uslamed all
ansacr in :d,:,iceee and plea m juris-
Jit'tron, and 00111i,se•d hill, :end trustee ap-
f•r::ied. The Supreme Judicl.d Court, Wil.
Lm>, C. J.. held Brat 151u•re svivice up.
i„rcign corporate defendaut 11.11 lint a:m...
spun president. trcalurer, clerk, r „h3-.
v, retry, agent lir other offs”: c. t.l:,r,
.if uvfcadant's Lu -arcs., sa,I >ar•ncr ,
I.n.ccse was nnand, hilt that :orae h..,
b,.nro to apply fur amhonzat:,a. w .....
Luther and prger serv.ce on u, fead:,nt.
Interlocutorydecree .nstamlag amave•
it, .d.alement :,Td plea to jar, 11.1:on at.
Lnurd; final (ICeree rhsmmml; 1,111 It.
%1 recd.
I. Statutes 17255
Long -aro slatale "Incl related it,
pa"crs of courts and Much could not Ihcre.
Lar be nnadr subject to a refcn•ndum sero.
`(feeble 30 daps after its enactment ON
July ".5. P48, rather Ilan 90 days after t•n
2tinlenl, and Was therefore etfectwe a5 10
still filed un Octubcr 2.3, 1964. )LG.L.A.
('oust. Amend. an. 48, Ref. 1, 3, § 2; %1,(;
I. A. C. 4 § I ; c. 22311 § 3.
2. Courts C712(2)
Term "cause of action' as list .1 nn 1,,.g.
amu salute reciting that court mac exercise
prneual jurisdictino over ptrstm as to
c:uuc of action arising from person's Irans.
acunl; business srilhu, comrnnnwcalth docs
mol have technical n,renng referring to ac.
rlons at lase 01,13- but includes viulation of
right or breach of duty for which law pro•
vides remedy, whether at lase or in equity.
\I.G.L.A. c. 223A § 3.
See publirorlou \ford" and Phrase"
for other Judidel cooetruvtiou, and
definition".
3. Slatules C=+267(1)
Statutes rela!ing to remedies and net
affecting substantive rights are retroactive
in a1 -Plication.
4. Slzlulas 67261(1)
Long-arm stater, %shish ns run hated
Oil u.nPllcd cuusenl but make% (fain; of c1r-
F,1111 arts the hasu of juri-+lirtim, urrr unit
rc•,drnl, a reutdnal and rein, prrin,• uI
apt ',salon. JI.G.L.A. e. 223A z; I tl seq.
780 Iml. 331 NORTH EASTERN REP0RTER. 2d SERIES
( 0ATLUSIU.\' -Thc rvidrnce WAS suffr-
cirnt to support Landers' conviction of
Vohmtary \l:oslaughler.
112] Initially, we rrcngnire the lung -
standing principle that manslaughter has
been treated as a lesser included uffettse of
murder :it Indiana. Robinlon r. .State
(1977), Ind.App., 309 X.H._'d 8.3.3, rev'd an
other grounds. Ind., 317 N.F..2d 830;Bar-
ker v. Slate (1957), 238 ltd. 271, 150 N.E.
'Ld 65O; bfiuunt 71. Stale (1967), 249 Ind.
1(S, 231 N.E.?d til; Galchelt v. Stair
(1973), Ind., 35) N.H.2d 665.
j13j The tide hmu these cases is that
if tlicre is evidence which would support a
conviction for munler in either degree, then
the jury has a right to find the defendant
guilty of Voluntary or Involuntary Man-
Manghter as a lesser included offense even
in the ;,Wuce of proof of ".sudden heat"
Pooley r. State (197-1), Ind.App., 323 N.1..
Zd 2.37.
All the circumstantial cv dunce against
I.anders need not be recited for its to con-
clude that there was strong circumstantial
evidence supporting her cons ictimt.
Landers and Robinsun had frequcnl al-
tcreatimus which at times resulted in physi-
cal violence to her. She made repeated
threats to kill him and purchased a .22 cal-
ibre revolver. She indicated a precon-
ecised plan 10 dispose of a corpse by dis-
memberment She purchased a saw and a
trash barrel shortly after he was last seen
with her.
About the same time slit burned a bloody
bundle in the purchased barrel and parts of
Robinson's dismembered body were found
at different gcogiaphic locations, lite head
containing two .22 calibre slugs.
She staled to a friend, after Robinson's
disappearance, that she had already taken
care of him and showc(I a friend a cement
sack in the basement where she had pre.
viously rest fired a 22 calibre revolver.
A searBt of her home rc,ealcd numerou,
items covered with Inman blood, one being
Type 0 sshich matched the blood foun,l in
kolinsnn's torso. Shortly after his disap.
Penance, she returned a bundle of his
clothes to his home.
1141 The circumstantial evidence suP-
porung Landers' conviction is strong
on�ugh to support a reasonable inference
of guilt beyond a reasonable doubt. ,lie-
: f fer v. State (1973), Incl., 291 Nr.E.2d 557;
Guyron v, State (1973), Ind.App., 299 N.
E.2d 2.33; Billion v. State (1973), Ind.,
292 NY'.2d 790; Coach v. State (1968),
250 hid. 226. 235 N.E.2d 193; Arrington v.
State (1952), 230 Ind. 384, 10.3 N.E.2d 210;
,llanduli v. stale (1946), 224 Ind. 209, 66
N.E.211 69; llenry o. State (1925), 196
Ind. 17, 146 N.E. 822; 0shunr v. State
(1V);), 167 Ind. 262, 73 N.E. 601; While
V. Stale (19.18), 226 Ind. 3(19, 79 N.li.2d
771 ; rarno v. State (1971), Ind.App., 3uS
N.E.2d 727.
The trial court's judgment is affirmed.
SULLIVAN, 1'. )., and INVITE, J.,
concur.
o � nnennnmr•
r
CITY OF BLOOMINGTON, Indiana,
of al„ Defendants -Appellants,
Louis A. CHUCICNEY At Al., Plalnllfls•
Appellees.
Na. 1-1074A 165.
Court of Appeals of Indlann,
First Dlntrlct.
.full- _0, 11176.
16•henring wi led Ang. 27, 197 -
Slot was brought on behalf of city re,-
illcmizl ectal property owners for declara-
tory judgntmd that city ordinance directed
toward residential rental housing was in-
unou'11,11•
one bcin�
1 iunnd in
his dis:q,.
le of hi.
-,` died.
Its.
city rcs-
' rlcclara-
directed
' in -
CITY Or BLOOMINGTON v. OIIUGHNEY ]till. 781
Thr \h error Cin un I ,Nrl. \tonne
tory ludl:mrul that rite unlorulce directed
.,,h.I.
,mule, Nat C. 11111, J., l:r,oued parlial
I(icmd Irsidcun:d remal h,m.ulg ssas im
judgment for plainliffc, an.] city
valid. I:ulurr to compel c,alain discovery,
. oulnlaly
,p,p,;,tell. The Court of.lpprahs, Buhcrt.
admi—vill of deposition, and overruling of
-un, I— J., hrM that poltums of zoning or.
motion for nore definme stairmcnt scrrr
,lulance, which ern+ dirccn-d loward rest-
clot shorn to be abnsr of dlwretion.
d,ntial rental housing ain't s, hich, into
.din, dicim l specific tct'rns, ont'elated to
5. Appeal and Error C�1046.1
.'11)' hollmill: sold safety rode, to Ise incind
rruced lr;d errors, which allegedly oc-
rd in every residential lr;uc, so directly of
trial of alit brought for
;,acd I.mdlord-tenant rclmion.hip that
l renta-
tory pldgulcnt that coy rrsidcntial rental
[o) ) d
14y Could not be upheld as incident to ex-
honing ordinance was invalid, were harm-
'Ickoof independent imuliciI .%I power,
less in light of invalidity of portions of
Affirmed.
such ordinance.
I. Nualclpal Corporations P57
In absence: of specific slautury denial
ut preemption, pmrers of city :ire limited
only by State and Fede rd Cousiltinlml.
IC 1971, IA -1 -IS -I to I£i-I-1,5..,711, I&-I-
19-1-1.5-23.
-
1A-1-1.5?i.
7. Municipal Corporations C Il HM
Municipal ordinance is not invalid
an•rely because it affects private relation
.hips, if it docs so as incident to exercise
of :mother independent municipal power.
IC 1971, IP -1-1.5-19.
3. Zoning CGI
Portions of city zoning ordinance,
which was directed towards residential
rental housing, and which, inter alia, dice
tared specific terms, unrelated to city hous-
ing and safety codes, to be included in ev-
ery residential (case, so directly affected
landlord -tenant relationship that they could
not be upheld as incident to exercise of in-
dependent municipal power. IC 1971, IA -
1 -1.5-19, IA -I-1.5 23.
4. Depositions C-118
Discovery C-33, fly
Pleading e7367(G)
In suit brought fill hch;df of city resi-
dential rental property owners for dcclara•
L:ro renes J. 0wrns, City Atty., John AI.
Irvine, Bloomington, for defendants-appel-
Lrob,
Frank A. Ilandnart, Maker, Barth;ut S
Andn:us, Bloomington, for plaintif6.appel-
Ices.
ROBliRTSO.N, Chief Judge.
The defendant -appellant (City) brings
this appc,d from the juftment of the trial
court in favor of the plaintiffs-appellecs
(Chuckncy) holding certain sections of a
City ordinance void.
The issue upon appeal is whether the
City, as a municipal corporation under In-
diana law, had the power to enact the ordi-
nance.
For the reasons expressed herein, we arc
of the opinion that the trial court was cor-
rect in its ruling that sections of the ordi-
nance were ultra vires.
The Bloomington Common Council
draftrd and passed Ordinance 72-76, enti•
lied, "An Act to Improve the Qnality of
Homing in the City of Bloomington".
The Ordinance is directed toward residen-
tial rental housing in Bloomington and, as
pointed ont by Chuckncy, the language of
the Ordinance is taken in great part from
i
782 Ind. 331 NORTH EASTERN REPORTER, 2d SERIES
the 14nfornn Landlord and 'tenant Rela-
tionship Act.'
Child.ney, nn behalf of the .Monroe
County Apartment Association and other
owners of residential rental property in
Bloomington broughl a suit fur declaratory
judgmeul alleging that the ordinance was
an illegal exercise of power beyond the
powers granted to the City by %tine statute.
A petition for intervention was granted for
the Indiana University Tenant Union.
;After oral argument on motions for
summary judgment from both Chuckney
and the City, the trial court granted partial
summary judgment for Chuckney holding
certain sectinns of the ordinance invalid
and also granted partial surnmary judg-
ment to the City upholding the validity of
the remainder of the Ordinance.
The City brings this appal front the
judgment of the trial cuurl invalidating a
portion of the ordinance.
The issue presented in this cane is deter-
mined by the pertinent Indiana statutes.
The powers of cnleti are established by the
1971 Powers of Cities Act found at IC
1971, 18 -1 -L5 -I (Burns Code fid.) through
ll;_1-1.5-30 (Burns Code Ed.). The act is
x Sl nifcnt chane• front Ir'or h L.111 1
held that a city could exercise only those
powers specifically granted necessarily im-
plied or indispensable to the municipal
rnrnnralion e
1C 1971, I8-1-1.5-23 (Burns Code lid.)
presently provides as follows:
,,The powers of cities as defined in this
chapter shall lie construed liberally in fa.
vor of such cities. A511ecifie enumeration,
or failure to enumerate, particular powers
of cities . . . shall not be construed
as limiting in any way the general and
residual powers conferred upon cities
I. The I;niforni Itcsldeutinl 1.nmllurd and Tell -
out All will drafted I,1• the Gnnudasloucn oil
uniform Stutr Ln%a and uppro%ed by the
National Colcreuce of Comudselonrra on
Ilniform Slate Lnws on .August lo, 1072.
.. It is the intention of this chap.
ler :unit the policy of the stale to grant
to cities full power and right to e.Ncrei>e
all governmental authority necessary for
the effective operation and conduct of
government with respect to their munic6
pal and internal affairs. 'Tilerude u
law 11, of rilir.r Imre only 7,171 Poco.,
rrnrrrs v ro� nfrrred by flnhde. neremari-
no uppfiration to me powers ranrca ra
nlnr.r nrrrm. :mptasis added.).
A city may now "exercise any power ur
perform any function necessary in the pub-
lic interest in the conduct of its municipal
or internal affairs, which is not prohib;:ed
by the Constitution of this state or the
Constitution of the United States, and
which is not by express provision denied by
law or by express provision vested :A' any
other law in a county, township or the
stale . . .. IC 1971, 13 -1 -Lc -16
(Burns Code Ed.).
(lj Tile legislature has made it c1car
that in the absence of a specific denial or
preemption, the powers of a city arc 1:mit-
ed only by the state and federal constitu-
tions.
The question in the present case is
whether the powers exercised in Ord;.,:. -.Cc
72-76 are stecilicalT,• denimsei'�.`'
slate slalutr. The statutory pronns:oa
tinent to the question is IC 1971,
5-19 which provides in part:
"Powers denied.—A ut • :.ina ll =•e
o�xcrcise either a t c folio,%inc :'cu•
7. Sce ]hum, Auditur rf at. o. City
unapufis (1135), 208 Ind. 00(1, IN N..i •=t`:
Cify of Lopanxport c. Public 8rrrir.• ': curia
(111:11), 202 Ind. 52.7, 177 N.6. 2211.
le it clear
: denial or
are limit -
d constito-
t case is
Ordinance
cities by
vision per -
I not have
wing pow.
ilY o/ Irdi-
GIS;
ri,e cion"'.t9.
I�
CITY OF BLOOMINGTON v. CHUCKNEY md. 9S3
Coe n. Sn $.::•d IMI
crs, which puw'ets hall hr reserved c\ ciblc lu tenl:J Imuvm' In eiv6,v tmm�ts a
chl,kely to the stat, private ,;nue of sawn against the IandlorJ
when homing Nils to meet code standards.
(a) The power to coact I:,ws I'nvcrnip
private or civil rclationshios, excaut as
:use incident to the exercise of an inde-
pendent municipal power;"
Paragraph (a) is a recognition of the
fact that laws governing relationships bo-
nrn'n private entities me more properly
the snh'rct of statewide legislation which
o'ould produce a desired um onmty in
trraiuu•nt u such interests, than municipal
Tuhdion which con r Fesu t in an endless
variety of privale law. For example, a
cite shmtld nut
be able to ,tact its own set,.
ma—..._
atae I:nc of contracts or r01pl,tiliC I'Cla.
tions sn cc t urs, areas are unsuited �>
than s a ewide cgtslat. 11.
(2J However, virtually all publir regu-
lation infrinl-es upon private rcltiunship•
V) some extent. In rcco(;uition of this
fact, paragraph (a) tonlains an tccptinn
permitting such regulation "as an incident
to the exercise of ;in indcpcnJent munici-
pal power." Thus, a municipal ordinance
will not he invalid merely because it af-
fects private relationships, if it does so as an
incident to the exercise of another inde-
pendent municipal power.
It is within this statolory framework
that we consider the legality of Ordinance
72-76. It cannot be seriously disputed that
the ordinance tt private relation-
ship between landlord and tenant. The
specific question presented by this appeal is
whether Ordinance 72-76 falls within the
exception of being "incident to the exercise
of an independent municipal power" such
that it was a proper exercise of power by
the City.
The Qty eontrnds that the ordinance
was an exercise of its recognized police
powers since its purlosc was to enforce
municipal housing and safety codes appli.
Chuc6ucy contends that Ordinance 72-76
was an attempt by the Cil) to legislate its
sewn pri,atc contract law for landlord and
tenant and that the Cily'< argument that
the effect on this private relationship was
only incident to the exercise of the police
power is merely an attempt to circumvent
the statutory prohibition of such regulation
by cities.
13 We are of the opinion that portions
of Ordinance 7276 so dircetly affect the
landlordaenant relationship that thev can.
Out be upheld as an incident to file exercise
of an independent municipal power.
The Ordioance goes so far as to dictate
specific Il'rrtls which mtuI be included to
every residcntal lease agreement entered
into within the City of Bloomington.
Many of these lenns are -wholly unrelated
to city housing and safely cur eT s and ean-
not therefore p Inc
powers in those arras
For example, section 12, paragraph 10 of
the Ordinance provides that "landlord and
tenant shall agree that tenant may enter-
tain guests on the premises at any and all
times . . . ." Section 12, paragraph
3 provides that "entry may he made only
with truant permission, unless made be-
tween the hours of 9:00 A. hl. and 5:00 P.
AI. and after advance notice of at least
twenty-four (24) hours to the tenant
Moreover, section 16 provides;
"M Failure of the landlord to supply
and execute :n inveolory all,] (],image
list shall create a presumption that any
damages to the rental unit at the expira-
tion of the tenancy agreement were in
I
ME
781 Ind. 331 NORTII EASTERN REPORTER, 2d SERIES
cxistcnc, prior In the current tell -tilt 's
STATE of Indiana at al., APPallanls
.uCUJMncy. (Defendants below),
d a It A Blott, Director, Dlvlslon of Stale
(d) Mmarc than mte mouth's rent shall
be rein re ' s -t sccur ty
prepaid rent."
While this 5•.unnlary is not cnmplcte it it-
While
the fart that Ordinance 72-76
dlord truantrelationship
gov ens the
otherwise than as an incident to the azar
else o t le city s police overs in re aril to
housin and safer' cod
contended
by the City„ A review of those sections of
the ordinance stricken by the trial court
shows that in each instance there was an
attempt to govern a "private or civil rela-
tionship". an activiy proscribed by 1C
1971, I9 -1 -1.5 -19 -
The City ,xrc•c lcd it, powers as a um-
nieipal corpnratiou under Indiana lavin
pa,sing those sections of Ordinance 72-76
held invalid by the trial court.
141 The Tenant Union has also raised
several issues concerning all,g('d prucedur-
a1 errors committed in the proceedings be-
low. It is alleged that the court erred in
failing to ennnpel discovery of certain in-
formation sought by the appellants, by ad.
mitting the dcposilion of a lobbyist, and b)'
overriding a motion for a more de
statement. These matters are generally
within the discretion of the trial court and
we have not Leen presented with evidence
showing an abuse of such discretion.
(5) alareover, in light of Our holding
that the ordinance is invalid under shoe
law, even if those procedural errors were
committed they would not Prejudice
nts and, rights of tile ail
therefore, any error resulting therefrom
would be lu,nnlcs%-
Judgment affirmed.
I-Oq'DERMILK amt 1.1'IIR00K. U•,
concur.
1
os p
Parka, Department of Natural Resources,
at al. (Defendants below),
V.
Doyle Lincoln COLLIER, Appellee
(Plalntlff below).
No. 1-174A2.
Court of Apl><ula of Indiana.
Molt Diatr(ct.
]lily 31, 1075.
Rehearing Dented Sept. 11, 1975.
Action was brought against State to
,,cover for personal iniurics sustained by
diver who was rendered a quadntplegic
after be struck surfboard being
propene
by life (guard in state park.Court, Monne County, Paul J. Johnson, J.,
rendered a judguucot in favor of tine diver
for $700,000 and the State appealed. The
Court of Appeals, Lowdermilk, J., held, int
ter aba, that docket sheet entry finding
against plaintiff, "ho failed to plead over,
as to specified defendants did not consh-
tute a final judgment which deprived court
of jurisdiction to modify entry after 90
day's had elapsed or the term oI court al
which entry was made and entered, that
questions of contributory negligence and
incurred risk were for the jury and that
the damages awarded were not excessive.
Affirmed.
I. Judgment q�-2730, 7)
Absence of order hook entry is Nr•
reetable by a none pro tune entry which,
when made, takes effect as of time of
original judgment.
2. Pleading C-210(5)
Record in personal injury action
against stale showing docket sheet entry
stating Iha1 plaintiff having failed to plead
over as to all defendants except state en-
pluycc and having cleft
ing on demurrer the c
plaintifi as to the snot
sets not a final judge.'
lint deprive trial court c
consider and modify n
most twu )-cars later.
3. Negligence 0136(26)
Incurred risk and
Bence are questions of
facts arc in dispute o:
men could fairly draw
front undisputed facts.
4. Negligence 47136(26)
Questions of incurr
utory negligence of plai
action against State it
sustained at state park
struck edge of floatit
propelled by life guard
5. Theaters and Shows <
State had burden c
tributory negligence a
personal injury actic
state by diver who sl
board occupied by life
Rule TR. f3(C).
6. Appeal and Error P
Appeal front net;;
sues of contributory
Burred risk was an apt
judgment and in deter
sion was contrary to
would consider only t
able to appellee toget)
Able inferences which
from.
7. Appeal and Error G
To set aside awo
dai rages must he xt (
mankind, at first Must
measure, unreasonable
such as manifestly sh,
I. We she
131 NX 24-14
1 `.
properly a(iceted by .I
l'un.L rt. 11, 5 d 1 uusr A;11:l1 �.
lrivnel , of roalal
arty rent control ,1111"t"r antrndntent rum- M .
7. Municipal Corponn r�
tlo5F14
moused ria„ actin which drvrluptd info Under Stale ('unsliluUnn, rays police
nctinn for declaratory nlief sir ddenmnt r ori tins Lr :pgdird only wllhto its own
tuns)itw iunality of the nine ronu ul me:a• terrnnr m,l I, subject to displaretnent by
:sire. 'lb, Suprriur Court, Alameda ('uun- y s broad
p, kubtrt L. ISnslick, J•. luund the charley gent r.J stair tier, Lm uthrnvi,r 1, as broad
provision
unconstitutional ;d and void, and ::, police puwer esercisahle Ly leg.
1 The asrli. \V,si s Anu.Cuost. .ret. 11. § 7.
tike pity :nd intervenurs appealu.
Supreme Court, Wright. C. J:, held that
Ill, existence of an ctnergcncy Is nut neces-
sary for rent l'Intlrnl •.,I,,n such regulation
is reasonably related to the furtherance
that
a Irgititnale governmental f I
facts established at trial did not preclude
t:te city from legislating on the subject of
residential rent control; that state law did
not pre-empt the field of placing m.t<imum
limits oil residential rents; that an enact-
ment for that purpose could properly take
if,, form of an initiative amendment to the
city charter, but that the :amendment in
question transgressed the constitutional
limits of the 1Nrlfce power nut because of
its objectives but because its provisions
prohibiting any adjustments in maximum
,,,Is except under a unit-hy-unit procedure
Which entailed inevitable unreasonable de.
lays were not reasonably related to the ac-
complishment of its objrctives and would
deprive landlords of due process of law if
permitted to take effect.
Affirmed.
Opinion, Cal..App., 122 Cal.Kpir, 891
varated.
ssov.re- 34?1
1. Municipal Corporation V79
(:Sty charter amendment, which was
adnpltd by initiative, anal adrirh insliulttd
lucid rens rcmltrul measure, for purpose of
allcviabng hard+hips coned by "seriuus
public emergency" resulting from growing
huu,ing shortage, could not Le given effect
to extent that it conflitlyd with general
law, either directly or Ly inuring field
which general laws were intended to oeeu•
fly to exclusion of municipal regulation.
1Ye,t's Ann Const. art. 11, § 5(:I)•
4. Municipal Corporations C=79
Fact that city charter amendment pro-
hibited landlords of residential units within
,.,I, from charging more than maximum
rent prescribed by municipal rent control
board under specified standards did not
bring amendment into conflict with general
state law, notwithstanding existence of
ien,ive state legislation gx
crninK a,pccts of landlord -tenant relationships,
,cmc of which pertained specifically to de-
n nnmanon or paymetll elf rent, where nci-
thet content nor quantity of stauun esuh-
li,hed or implied any legislative intent to
i
CITY Oi llgIllL l:hF.Y 1001
hilt lL l:Nl't:LLI v.
r,,. ,,.
•.sir •,i u.n
I, rel unh 1p;J fnrporalW n+,: -•Ib
Iasi 1':d III,I' , •.'
ll+
\inv¢:y;,l 'un ,,:,.ILd u•.,.I •.mc lu
wa•, dc-
TrudeBIRKENFELU rel aL, I'la lull
iww,d ,h.W rr anlculllnrul. ")lull
""..
and Respundenb,
,Igmd tu.dltvultc hard,ldp, +.aal •rd Ly
wi:Ih c:nnu,ccd'If
v'
CITY OF IIEFKELEY, Dnl nntlant
nuu, public emergent)."
.homage ,If bowleg uu It, rnadt-
and Appellant.
gt ,`
Ilq; m cnL'i a;l �. Invv s:u,;lnry rale>, 1.. pidly
d of
Fall tient Committee al "I" Interveners
r,,ulg ent, :md Iuntinuing 4enul:dwu
and Apptllante.
rcisung h„using stork, n':l, 'n .
S. F. 2]370.
•usa•plible of al.,'I iona•I'ss, ilmtia-
r'unrl or 1'ulipn ul o,
t n�r :Ia rqr
11'r, ❑ulw rthslanding lack of nolice or
tiulo,•III”
in Itnnk.
my fur heanng uu 1�• sit of affected
In. 7P711
puruu
I:uullurds and pinpclty uwncl,. St.1972, n.
.lulu•
2, 1u1, 17, `,\',,t', Ann.
properly a(iceted by .I
l'un.L rt. 11, 5 d 1 uusr A;11:l1 �.
lrivnel , of roalal
arty rent control ,1111"t"r antrndntent rum- M .
7. Municipal Corponn r�
tlo5F14
moused ria„ actin which drvrluptd info Under Stale ('unsliluUnn, rays police
nctinn for declaratory nlief sir ddenmnt r ori tins Lr :pgdird only wllhto its own
tuns)itw iunality of the nine ronu ul me:a• terrnnr m,l I, subject to displaretnent by
:sire. 'lb, Suprriur Court, Alameda ('uun- y s broad
p, kubtrt L. ISnslick, J•. luund the charley gent r.J stair tier, Lm uthrnvi,r 1, as broad
provision
unconstitutional ;d and void, and ::, police puwer esercisahle Ly leg.
1 The asrli. \V,si s Anu.Cuost. .ret. 11. § 7.
tike pity :nd intervenurs appealu.
Supreme Court, Wright. C. J:, held that
Ill, existence of an ctnergcncy Is nut neces-
sary for rent l'Intlrnl •.,I,,n such regulation
is reasonably related to the furtherance
that
a Irgititnale governmental f I
facts established at trial did not preclude
t:te city from legislating on the subject of
residential rent control; that state law did
not pre-empt the field of placing m.t<imum
limits oil residential rents; that an enact-
ment for that purpose could properly take
if,, form of an initiative amendment to the
city charter, but that the :amendment in
question transgressed the constitutional
limits of the 1Nrlfce power nut because of
its objectives but because its provisions
prohibiting any adjustments in maximum
,,,Is except under a unit-hy-unit procedure
Which entailed inevitable unreasonable de.
lays were not reasonably related to the ac-
complishment of its objrctives and would
deprive landlords of due process of law if
permitted to take effect.
Affirmed.
Opinion, Cal..App., 122 Cal.Kpir, 891
varated.
ssov.re- 34?1
1. Municipal Corporation V79
(:Sty charter amendment, which was
adnpltd by initiative, anal adrirh insliulttd
lucid rens rcmltrul measure, for purpose of
allcviabng hard+hips coned by "seriuus
public emergency" resulting from growing
huu,ing shortage, could not Le given effect
to extent that it conflitlyd with general
law, either directly or Ly inuring field
which general laws were intended to oeeu•
fly to exclusion of municipal regulation.
1Ye,t's Ann Const. art. 11, § 5(:I)•
4. Municipal Corporations C=79
Fact that city charter amendment pro-
hibited landlords of residential units within
,.,I, from charging more than maximum
rent prescribed by municipal rent control
board under specified standards did not
bring amendment into conflict with general
state law, notwithstanding existence of
ien,ive state legislation gx
crninK a,pccts of landlord -tenant relationships,
,cmc of which pertained specifically to de-
n nnmanon or paymetll elf rent, where nci-
thet content nor quantity of stauun esuh-
li,hed or implied any legislative intent to
i
1001 tall.
:41,0 I'ACII'IC REPORTER, Rd SEIIIEG
(schtde uauuop.d regulation of amvmlt til lh:
trot Imsrd ,m Iura1 c"ndttfons, awl where de
(halter :o tie till", no's purpose til pre venugh
cxpinitan.,n of housing sVs li,e lmnlglr an
ex(e„Ivf vm (barges w.,s distinct from ,u
lou pn.c n( any AMC 1,Kislailou, 5t.1972, t,
p, 31711, Aou•nd, \o. 2, at. 17, § 7; West's 9.
A....Const, art. II, § 5(a), 7: West's
H27, 1935, 19.1'_, 1942.5, it
AnaCiv.0 tide, §§
1947, 19505. c
n
5. Landlord and Tenant (7200.11 tl
Municipal Corporations O57
idere fact that municipal imposition ()Ia
rent ceilings :,[feet, private civil relation- r
ships by nullifying tenants' liability to u
landlords for rent in excess of staled eeil- 1
ings toes not render measure invalid city
police regulatlml; Stale Constitution con-
talus
,private law.. exception m mumcf• i
flat power..
G. Municipal Corporations (37-46
('ity charter amendment, which is olh-
cnvise valid, may be adopted through ini•
liativc process without conrurrrnce of city
council; fact that initiative measure might
touch upon city council's power to levy
taxes by affecting property tax base docs
not constitute prohibited interference by
initiative power with function of legislative
body.
7, Municipal Corporations 0746
Dlunicipal charter amendment institute
fug local rent control measures, which was
adopted by initiative process, was not in-
valid, on theory that it pre,cribed detailed
procedures for carrying out its substantive
provisions and therefore violated rule that
initiative cannot deal with administrative
matters, where amendment did not inter-
fere with preexisting legislative policy but
instead performed purely ItgWative funs.
t,un of introducing new regulatory
St.1972, p. 3370, Amend. NO, 2, art. 17.
0. Municipal CorporAllen& e746
flower of city electorate to amend
their city charter through initiative is de-
rived from Mate Constitution and is free
from any prerequisite relating to fact-find-
ing Procedures by which existence of facts
it w,ndd ,.,rtanL :rmmdment might hr
ertalued; ba,lcr :unc"dment must be
emed to have been enacted un bash UI
y ,talc of B,cts nlpporung it that rra-
addy can be rouecived, \Vest's Ann.
u..st. art. I1, ti Ill)).
Municipal Corporations X63.1(3)
If city cuuucil itself proposed ch:uter
nendmenl, Supreme Court, in reviewing
hallenge to validity of amendment, could
of probe council members mutivatlon, for
wing so :11141 would he required to judge
mendment's validity by its own terms
athcr than by "'olives of or influences
Pon legislators- We9t's Ams.Const, art.
1, § 3(h).
0. Constitutional Law 461
Fact th:d initiative process revlts
. legislation reflecting will of majority
tad imposing certain hurdem upon land-
Inrds is not ground for holding such legis-
lation invalid; it is of essence of p„lice
Power to impose reasonable regulations
❑pun private property rights to serve large
rr public good.
11. Statute, (v30.3
Scope of initiative power reserved to
People in to Le liberally construed.
12. Municipal Corporation, 4x46
Judicial protection of landlords' rights
with respect to rent control enactments
sudt as by amendments to city charters
through initiative process lies not in Place
ing arbitrary restrictions upon initiative
power bill in measuring substance of enact-
ment's provisions against overriding cnnsti-
tulional and statutory requirements.
13. Landlord and Tenant 47276.2(tt
Dlunfcipal rent control provision v. Lich
prohibited eviction of tenant who was in
gond standing at expiration of tenancy on'
less premises were
Ile
wl l;.a,r offer
rom
rental housing
of renewal lease bad been refusal ww• rca•
sonalrle means til enforcing rent (riling
contained in rent control measure by pre-
venting landlords from Putting out Irn ants
because Of their unwillingness to pay ille•
1
I
1
,
1 `.
BIRAENPIILB v. UITY Of' BCItHELL'Y
w;1 ,J tent „r tin,+ of l,,,., t„OI In
Int n 1 rears •. o, n ul retL ng,
with ,tat Life'. which provide landlords wit 1
„ I L I I.,, „ I r "" t OIH l i, n I, + .
till 1, pi nn t, ,erkmg It , , I- I po+
zessu,o "t lent controlled wul runfllcte'l
14. Nuniclpal Curporatlon, : 74
I'tovieiun, of unlawful d,lalner slat
our, whir)) w,^,- de,p;n... I it, :npL^rent .,
13:1'110ol's properly 119111, Ly p, norttinl;
h oil to re,.n•er I... •ann ,net- neucnvual
basis for 1,n nun,. occupancy 1, ;it end, were
not in conflict with pro v ivons o1 mu nlci pal
charter amendment forbidding Lmdlurds of
recover possession upun exeiration of ten-
ancy since charter amendment's elimination
of particular grounds for rvictiun was lim-
uatton upon hmdlorde' property rights un-
der polFer power, giving rise to subslantivc
grounds of tL•fense in unlawful detainer
proceeding,. St.1972, I, 3 0, :%mend. No.
2, art. 17, § 700; Wnsl's Ann.Gc.Code, §§
780, 1937; We,t's Ann (.,. it ( ,s. f'rnr. $\
1161, subd, I, 1164 rt +rq.
15. Landlord end Tenant C--2911(1)
Landlords' violations of City's housing
code may be basis for drfensr of breach of
warranty of habitability in summary pro-
cceding instituted by landlord to recover
possession for nonpayment of rent.
IG. Landlord and Tenant (31'290(1)
Statutory remedies for recovery of
possession and of unpaid rent do not pre-
clude defense based on municipal rent con.
trol legislation enacted pursuant to police
power imposing rent ceilings and limiting
grounds for eviction for purposesof en-
forcing those rent ceilings. %Vest's Ann.
Cole Civ.Proc. §§ 1159-1179x; West's
Ann.Civ.Code, § 1951 el seq.
17. Munlclpal Corporations Ca78
Question of whether local enactment is
excluded by state legislation is not neces-
sarily concluded by literal language of per-
tinent statute but depends upon whether
slate has preempted field a, indicated by
whole purpose and scope of state legisla-
tive wheme.
10. Municipal Corporations Cr -,79
Provisions of municipal charter
amendment requiring landlord to obtain
suuuodn proccdur, for cavi rising, their
right, or rrpufse,sinu .19aiml fco" lt'. since
I nitllret'a It „f ,cr l+hratc ul r\'i( loll
raiocd to.0... ural bdii tern Lrtacen Idudlord
;uul judtaal proceeding ',which was intend
-
ed to It, rrlatvely mmldr and peedy renu-
dy obvhmng any nerd for ,If hclp by
honHollis, and to ,rich rstettt, charter
ani,cob hent was im:dtd. St.10721 It. 3471),
Amend.No. art. 17, § 71111; %Vest's
Ann.Colfe t'iv.l'roc. §§ 1157-117')a.
19. Landlord and Tnnant V2711.2(1)
Where city ,flatter anlnldmcnt, which
insti Lturd local rent control measures, con-
tainvd provisions for fining ntaxinurru
rents that were cunstitniomdly defective,
pn,ri•ann If mneudrnent ImIltiol; grounds
fol n Lmdloni's rvictiun of Li, lenxnt,
which half no legislative ptn i+u'.e in al,
,encs of limits un rent, could not stand,
even thnugh provision was rcasonablr
means of assuring euntpliance with maxi -
noun riot limits and did not conflict with
statutory repnssrnion pro"edinge, and
even though charter amendment contained
s,,erahihty ,'latus, where sorb ,laose did
ora Ir,ltnre salvage of pruci>iun, which
were not intended to Ile independently op-
rrativr. St.1972, p. 3370, Amend. No. 2,
art. 17, § 7(g); Wcsl's Ann.Code Civ.
1'roc. §§ 1159-1179a.
20. Landlord and Tenant 67200.10
"Emergency" doctrine invoked to up-
hold rent control measures of more than
half century ago is no longer operative as
it v,a, formulated as special exception to
limitations on police power that have long
since leased to exist.
21. Constitutional Law v�01
Legislation regulating prices or other-
wise restricting contractual Lir prnpc sty
rights is within police power if its oprra-
live provisions are « asonaldy related in
accomplishment of legitimate governmental
1004 "0. !,:,n 11ACtf'IC REPORTER, ''Id SERIES
purpose; exl,lcuce of :mcr;:racy i, not
prerequisite to suth legislation.
22. Landlord and Tenant C:- 200.10
,,for, presslllg Ile Ce$Sil)' Is 1101 t'011,ll-
lutionally required for rrgulatimt of r,mt
than for regulation of prices generally;
same constitutional standards apply to both
types of regulation.
23. Constitutional Law Ga81
In dctcrminiug validity of legislative
measure under police power, Supreme.
Court's sols: concern is with whether mca-
sure reasonably rrlates to legitimate gov-
ernmental purpose and court must not con-
fuse reasonableness ill such context with
wisdom.
cmdrol, under police power uulcs, finding,
cetablishad complete absence of even debat-
able rational laoi, for legislative delernli-
n:dion by city elecnlrate that rent control
was reaillltable mCalla of CURItteMC1109
h:rtm>
and dangers to public hraltlt and
welfare emanating from housing shortage;
in leviewing findings court would look to
trial court's mennlrandum of opinion as aid
to their interpretation.
24. Municipal Corporations
C=595, 596, 597, 598
Pnliec power of municipal n,rpur.dion
extends to objectives in furtherance of
public peace, safety, morals, health and
welfare and is not cirrumscribcd prcruga-
tive, but is elastic and capable of expansion
to meet existing conditions of nuodr.rn life.
25. Landlord and Tenant x200.11
Constitutionality of residential rent
controls under police power depends upon
actual existence of horsing shortage and
its concomitant ill effects of sufficient se-
riousness to make relit control rational cu-
rative measure.
26, Constitutional Law 0=48(1)
Although existence of "constitutional
facts" upon which validity of an enactment
depends is presumed in absence of any
showing to contrary, their nonexistence
can properly be established by proof.
27, Constitutional Law b48(5)
\Vhere trial court concluded that mu-
nicipal charter amendment instituting local
rent control measures was invalid on theo-
ry that fact, as found by court, did not es-
tablish emergency conditions which court
deemed constitutionally required for rent
control, but where no such emergency was
constitutionally required, task of Supreme
Court on appeal of case would be to re•
view findings and sustain propriety of rent
28. Landlord and Tenant(;; - 200.10
In field of regulation not occupied by
general state law, such as rent control,
each city is free to exercise its police pow-
er to deal with it, own local conditions
which may differ from those in other
areas; city which had distinctive life-style,
school system, and reputation as university
city, all of which attracted residents and
offered likely explanation for rental hous-
ing vacancy rate that was markedly lower
than in adjoining cities, was not constitu-
tilnlally required to ignore any of its hous-
ing prohlemb on ground that they would
not exist if sone of its residents were to
five clsewhete.
29. Landlord Ind Tenant e�200.11
Even assuming that legislation could
Ile invalidated for nlistakes in its preamble
concerning facts not essential to constitso
tionality or legislative authority, fact that
preamble of municipal charter amendment,
which instituted local rent control mea-
sures, declared existence of "serious Public
emergency" with respect to housing prob-
lems in city when no such emergency ex-
isted would not be grounds for invalidation
of charter amendment since mistake in-
volved at most only descriptive differences
in degree of seriousness of housing prob-
lem sought to be remedied and any ques-
tion of correspondence between problems
and findings cmdd he completely eliminat-
ed by only minor changes of wording:
"emergency" wording of preamble did not
prevent adoption of rent controls to deal
with conditions lemribed in Wearable
which were consistent with trial cmlrt's
findings.
3t
3
i
I
EIRIi IINFELU V. CITY OF BERKELEY Cal. 100.
, I—a. ren I• :••I nut
LI. L.,nJlunl .old le...ult �:'llu.11
V. Len• uuuurlp.d , h.0 Irl .nnrnduu•nt
da Lll,,I 1hal n� n"IJ ..... 'I navou.
.rm intended In iumarr.lcl ill ffccb ul
Falodiv To ing rent n:.ulmlg iron exploua
lion of ,skiing 1.,,,1naK ,hort.,Kv. sur 11
provisions were within police passer if they
were reasonably calculated to eliminate ex-
ce<sive rents and at same time provide
landlords with just and reasonable return
un their property; If effect of provisions
would necessarily be :o lower rents more
than could reasonably be ron,idcred to be
required for measures etatcd purpose, they
were nneunstitutiun.dly confiscatory.
31. Constitutional Law CAI
Although gnestinn ill whrther regula-
lu,n of prires 1s reasonable nr cnnfisratory
depends ultimately on rrsult rrrrhed• such
regulation may be invalid on Its face when
its terns will not permit those who admm-
fstcr it to avoid confiscatory results in its
application to complaining parties.
32. Landlord and Tenant (7200.11
Selection of August 15. 1971, as key
date for determination of lyse rents under
municipal charter amendment imposing lo-
cal rent control was appropriate and rea-
sonable where possibility of rent controls
in city arose at least as early as Marrh
1971, and where, due to importance of date
under federal regulatory .Theme imposed
by executive order under Economic Stabili-
zation Act of 1970, date marked latest time
at which rents had been set in unregulated
market and selection of date increased
probability that landlords would have rcc-
lords concerning rents on that date readily
available. St.1972, p. 3370, Amend. No. 2,
art. 17, § 1; ficonomic Stabilization Act of
1970, § 201 et seq., 12 U.S.C.A. § 1904
note.
33. Municipal Corporatism +e-62
,%micipal legislative body is constitu-
tionally prohibited from delegating forrnu-
buion of legislative policy but may declare
policy, fix primary standard, and authorize
exceptive or administrative officers to pre-
scribe subsidiary rules and regulations that
ill.. meal pod, r .nal ,1.nidal t .Ind to do
o linins appLr;uuw u( pnLcy ,n ,tmid;rd to
Ln h ul p;rGeul; r race.
'JI. COndllutlonal Law
S l andard, tiolflrient for n'.uunblrat n'r
:gq,licauoo of siatUtC can Lr uuplicd by
?tanitol'y purpose.
35. Landlord and Tenant 0100.11
\lrht•te municipal charter amendment
imposing local rent controls stated its pur-
pose of counteracting ill effects of rapidly
rising and exorbitant rents resulting from
exploitation of housing sburdge in city,
and provided board which w'a, Io adminis-
ter It rinnrxCll6fVr illustrative lie of rcle-
v:un fectnrs to he ronsidrrrd, rharu•r
:onendmenl provided runstiumnnaliy sufff-
tieut hgi,lative guidanrr to board for its
determination of petitions for adjustments
of maximum rent, S1.1,il p 3370,
Auwnd. No, 2, art. 17, j§ 1. 3(g ?.
36. Constitutional Law na62(2)
Legislative guidance by way oil policy
and primary standards is to enough to
render valid legislation which delegates
legislative power to administrative agency
if legislature fails to establish effective
mechanism to assure proper implementa-
tion of its pnliry deckinn: whrn statutes
delegate power with inadequate protection
against unfairness or favoritism, and when
such protection can easily be provided, re-
viewing courts may well either insist upon
such protection or invalidate legislation.
37. Landlord and Tenant X200.11
Municipal charter amcndml-nt impos-
ing local rent controls was constitutionally
deficient, even though sufficient legislative
guidance by way of policy :cod prim; ry
standards was supplied to board which
would administer control measures, where
amendment established base rent for all
controlled units which was In remain as
maximum rent for indefinite period hot
withheld power by which hoard could ad-
just maximum rents due to changes in cir-
cumstances or to reflect general market
ronllitions without unreasonable delays and
i
101)ii Cal.
!,bu PAOIFIO itFIVOft'I'ER,'2d SERIES
a❑ Ir;ueis,o, Jelf cry I. Carter :mal \\•.
h•;ull,, F.eanng, Ilrrkrlr�,
for iutr•rt rnvr.
1.,1 af,p<'1IJ11I f.
P�hnumd L. Regalia, li:olwrt A. ItrL:er,
cslic A. Johnson and Miller, Starr & Re-
alia, Oakland, for plaintiffs and respond -
Its.
Rich & L•zer and Alitchcl J. L•'zer, Los
Angeles, as amici curiae on behalf of
daintiffs and respondents.
instead required bn:ud nn mllnw adju+l-
nlent pruredurc which wmdd ni.akc milt 1
delays iucvitablr, prupetly may be as e(- •a
fectivcly taken by lung-runtrnu1tll jna`Ilol
n Ls- 1.
r ... ollable delay iu putting
calory rates as YiI1,IlLss A nn, ndta Mame arttIt
. c
them. St.19721 1) • 3
No
l7,vj 1,3(g),i,(1(;0.
38. Landlord and Tonanl =00.11
In reviewing constitutionality of nlu- 1
nicipal charter amendment imposing local
rent controls, provisions of amendment
which create delay:, in procedure for ad-
juslnlcnt of maximum rent due to c{
in circumstances and to reflect getural
market conditions utust he examined in re-
lation to magnitude of job to Idune. St.
1972, p. 337(1, Amend. No. 2, :art. 17, E 5,
6(a).
38. Conslltullonal Law r✓4!IHtI)
Municipal Corporations 0=63.1(6)
Municipal charter amendment imlros-
ing local rent controls was unconstitutional
in that it would deprive landlords of due
process of law if permitted to take effect
where combination of control measures'
automatic imposition of rent ceilings it,
form of rollback to base rents and inexcus-
ably cumbersome rent adjtntment proce-
dure requiring that adjustments be made
only on basis of unit -by -unit hearings be-
fore single tribunal was not reasonably re-
lated to amendment's stated purpose of
prents' constitutional
preventing excessive
defect could not be cured by excision of
defective provisions hot only by additional
provisions beyond court's power to provide.
St.1972, p. 3370, Amend. No. 2, art. 17, §§
3(a, g, 6 k), 5, 6(a, f, g) -
Itlis L. Johnson, CCityt\tty., Berkeley
Susan Watkins and Kathryn I_ Walt, Asst
City Attys., ,Ilch.lei Lawson, Deputy Cit
Atly., Donald P. McCollum, Oakland, All
Charles 0. "I'riebel, Jr., Iferkeley,
for Cenelant and appellant.
Myron Moskavitz, San Francisco, I-aw
Dudle
enee L. Ihga, Berkeley. Barbara
WRIGHT, Chief Justice.
In this case we consider tits validity of
au initiative amendment to the Charter of
the City of Berkeley providing for residen-
tial r,ot control wilhm that city. In a
,Iasi action brought by plaintiff landlords
the superiur court declared the amendment
void and enjuinrd the roar drothat the enforcing
it principally un the g
deuce al .a lengthy Ilial showed that
ttl the
city was not Laced sunitthlhc court sdeemed
emergency of the .. ..
constitutionally prenrpnuslte lu tmpovtum
of rent controls under the police power.
As hereinafter explained we have con-
cluded that the existence of such
rent
emergency is no more necessary
control than for other forms of economic
regulation which are collstitutionally valid
when reasonably related to the furtherance
of a legitimate governmental purpose, and
that the facts established at the trial did
not preclude the city from legislating on
the subject of residential rent control, We
have also concluded that state law does not
preempt the field of placing maximum lim-
its on residential rents and that an enact-
ment for that purpnac could properly take
the form of an initiative amendment to the
city charter.
however, we also hold for reasons here-
inafter stated that the Berkeley Charter
amendment tmnsgresscs the constitutional
Y bmith of the police power not because of
d its objectives but becau,c ccltain proce-
• durus it provides would impose heavy line.
(lens upon landlords not reasonably related
r• to the accomplishment of those objectives.
y The amendment would require a blanket
lull
vlf,
CI'
prV
ren
wh
inc
me
Sol:
to
poc
ont
ad,
lea
fal
:ar
all-
cxl
ag•
ter
rce
he
tri
me
a'
fo
re
co
du
of
an
sir
ap
w,
R
4
BIRKENFELD V. CI'T'Y Of- RI:It. ELEY r;J. 1007
1 a. I,.,i xl
1• '.1 Il.n
rolib.uk ul .11 nndndled �,:il. I.s iho.r ,
\.,I;lit . 11 u1."ri rent '1lun•. Ilu.vs,r..
'-(feel ,It :\ItKlbl IJ. 111;I, Iii is, .Illy Inw
`IK II Iq uh IL,I loll Ilf. f.,JI II)' fall] alulll;
fI Il'Ilh 1:1 1'I ICeI lhfll'.Ifter I .VIII UUIIIII
\dill slit. �11mirr ."nelidnif 11 Y"It.titlltlrlll.
rrah l h It it lav sill lll'•rient, nil 111.1\111111111
:111Y Ile 1, 11 'f rl'ec I1 A I I,"'I Ln :I111115[IIIf;
rent, cxerpt under a colt I.v uml Iroced urs
1. t %i ion:n rein, Act ot dingh%, is of Ilan
which for re:nuns In Is, expbaned wnnld he
tits pl,h;meal.
inc:glAble of cf fect i ng tu•ress'ar'v Jdju,t-
'r hr p.lrtu', Lc1ur1' u, ITT; 111dc not only
Went, throughout the city 'tithiu any rt:,
Ihr pia imti Landlord, :Ind de fs"lant city
vnlaLle period of time. I'.:en if we were
In11 :tial a 1;1 nap of OII::IIIIL11 PItIS nl»I indi
!O :Id(g1I eUI111S1'1 S }rlgge ]flUll 41 :I )4dle lJi
Volmd, "Is, olein a corliplaltll 111 Itilc'rven.
postponement of the rent rullh:I�k date lu
tion pr.,yulg that plamtiffs 6• denied al
one that is more currents the absence of
n'hef. The mtcnraer, generally itqucseut
:rde•qu.ile atlill,townl procedure, would
fNn lylst'. (If Ilaeresl::' (I) 'ImIctils, tI1,Ib
lean•'- arbitrary luso iuuun it in of fen
bl�'d Is,., mis and ether law• income is pants
far longer than would he reasonably mess
on upyin rental binning ill Berkeley and
s:ay lu the amt ndment', ,tared pnrpo,s- nt
(v) Itrr'nrley re.idem, :u,ru:ng ,I'Virun�
alleviating hard,hip caused by rising and
1111'Iff.11 Il11 Crf Slti III hfl'L'rVlllg the l'SlShllg
cxollliamt rents exploiting A horsing ,hart'
bnn,im,; ',I.srk and presenting an '-,...Ills of
age in the city.
I.,%, in, Inns' n'•. Arnt,. The mlefvroct!.
In addition Ill controlling rent, the char
ed n1 Ihr Irian :Ind b.n'r filed :Ir
ter amendment itnprrsc, prcregln,ites and
;Il,j,fa1 ,real:nes from that of kendant
restricnom upon eviction proceedings. An
'Ihe Iecnld un appeal is confined Ill the
hereinafter explainer) we coticur with the
clerk's Iranv'ript.
trial court', vie, that the chatter annend'
merit's renuirement that the IanIbwh-y mill
is
with state
of these procedural restrictions the charter
amendment's prohibition against disposses-
sion of tenants who are in good standing
apart from the expiration of their terms
would be a permissible means of enforcing
Thr judgutnn below deelaml lilt Iniofntivn
pnr'vllure (TIolitutinnxlly I11euffi6ent for en.
nctrnent of munielpnl rent ruutrols in flint it
tallest to provide Inndlnnl, with renlemnbls
Indira and the rixht to lie hrnrd on the merits,
of the mrnnure prior to its, ndoptiml. sifter
Ihr jllrlgln,,nt Will, enter sl we held it, son
theist. Iffdg, hunlrnrbm :Inn. is Cifp Colin-
If
rrumIf flint the inilixtive pnnsilure enn
I, n+rs,l In ndnpt a zoning ordimnn•e nnoti-
Twine A general leei.lnlive Ira dinrine, front
iMpubcntnrv) n14 notwith,umdi11g the Intk
of nolire or opportunity for henring ort The
part of aff,wtest property owner, (Arnrly the
preventrent rnntml mens,,,, in n x1•nend leg
inbllive Act suncepllble of Adoption by luitle.
ties, Imder nor holding ill Sun Diego Iffdp.
1 I 'Ile regularity of the proceedings
by which the charter :unrndnmnt was
adopted is riot quntiolled. 9'Ilc :mieldment
was proposed by miliativett w:ln adoplyd by
the city electorate on Jun, L, 1972, and
Apart front questions of its substantive va.
lidity took effect on August _', 1972, when
it was ratified by the Legislature.' Its full
text is printer) in the chapter laws (Slats.
1972 (Reg.Srss.) res. eh. 96, Is. 3372) and
is set out in the appendix heret(e°
!'.nl Test, lore. (Fres id. At pp, 21171.1. 118
Cnklt Por. 1411, !"ll 1'.2d .570.) 11I46111lf s, do
11.11 mobil nthrrwin,• nn thin Appeal.
Z. .\Ppo,nl by ronrurrent rrnnhuinll of Loth
huun.•1 of Ihr LeRl+lnlure wan mnulrrd by
the thele pmvislonn of "M H( :4 of urtirle
XI s.f Ihr 1ldlstltuliun. In laid vnlelivtnton
(:IJ of w+9inn :4 woe nuvndr,l its dtnpense
„'ith the nr,+•txily for the LrKinlxturesn up-
la,M a rfly rilnrter sm,endment+,
3. 9lv a nose pn.e,eshngs Il,. -ity
enumll't rsfn+nl or a puhlle lu•n rinx nn f'rh•
rune .4, lhi7, it Irinre the not nrutrul it -
nue on the bx11oL In Vitin Ih.. rnunril hod
uppnintl+l o Wolin lin Isil" Wnnulillrr whteh
non Its etndins Aad in \IArr•h 11111 in,uell nn
IOpR Cul. bbo PAUIFIO REPORTER. 2d SERIES
'I It.: charter twmudnuvu derlarcr that its
purpose is Ia allcviata file hard,hips cooed
by a "scriuns public ruwrgafcy" endanger.
ing life public he:dth and welfare, especial-
ly that of "the poor, minorities, students
and the aged," and affecting a mtitslanfial
prolmrtion of Berkeley tenants. The timer
gency is declared to consist of "Jul grow.
ing shortage of lousing units reboiling in
a critically low vacancy rale, rapidly rising
and exorbitant rents exploiting this short.
age, and the continuing delrrioration of the
existing lousing stock." (§ I.),
The measure provides fora rent control
board (Board) of five popularly elected
commissioners (§ 3) to fix and adjust
maximum rents for all rontrolled dwelling
unit,, administer restrictiuni on eviction
procerdings, and cxcrcisc ,liter regulatory
and enforcement powers. (-ontrols apply
to all rented houses, apartments and room-
ing units other than (1) accommodations
rented primarily to transcient guests for
periods of less than bl days, (2) rental
units in nonprofit homes for file aged or co-
operatives, certain religious or medical fa.
cilities, or dormitories of an institution of
higher learning, and (3) governmentally
owned, operated, managed or subsidized
cxhenntirn retelet with rwamunendation, but
dw:idwl with ono din%ent not to rcrommend
rent control.
4. I'ulrsa otherw•i,e Indi,al.4, oil iwetion ref-
erence. herelnafter aro to Articlu XVII of
defendant's charter, udded by the charter
nm•ndment ort ant in the appendlz to thin
upinfan.
5. There i, no .•xn•ption for now hnnning tin.
stnieliou generally. The bnllot argument in
Nvor of the rbnrter omrMlmmiff (inmij,orated
into file plendinge) atnlyd: "Cnntmllwl
renLr will dkmurngr high rent-gWvk Sunlit
tacky-Ineky nlutruri mnslruction, tlum help-
ing slop (Ientnledafl of older homer and pre-
sr•rving Berkeley's unique envinrnmenml
rlr.,rncter. I4•nt control will help r•nenm Thal
new housing fmnntnn•tion serves Ihoaa Mont
in noel—Inw• iurome families, minorillee,
ntudenln and lhn ugwl."
G. Glom the I.egiololurr'e approved of the char-
ter umemlmenl nn rent of a conlmilwl unit
could be rnholl pending "Ihn rollback of runts
to the hose rent levrl." (1 4, subd, W.)
n•ubd hninn,g (.� (, .nbd.. (r), (11).15
'I lie Board is required I„ fix a "base rent"
for all controlled units by ' administerlingl
a fullback of rents' to the lowest level iu
effect ml or after August 15, 1971, or to a
comparable prevailing Irvel if the unit was
not rented on that date.° (§ •1, subd. (a).)
'File rolled -hack base rent becomes the
maximum rent subject only lu "individual
rent adjustments." (§ 5.)
The Board is prohibited from granting
any adjustment „f the maximum rent even
for an individual unit until it receives a
petition from the unit's landlord or tenant
and considers the petition at an adjustment
hearing. (§ 6, subd. (a).)- Any landlord's
petition must be accompanied by a eertifi-
catinn from the city's building inspection
service showing full compliance with state
and city housing codes based on an inspeca
tion made within six months. The certifi-
cation is only prima facie evidence of com-
pliance and the Board may refuse an up-
ward rent adjustment if it finds from oth-
rr competent evidence that the rental unit
is not in compliance "due to the landlord's
failure to provide normal and adequate
housing services." (§ 5.)" In considering
a landlord's or tenant's petition for rent
The trial court ndjudxf•d till, "rrut freeze"
In be vnibl up to (bun not after) the date
Of entry of the judgment, dw•Inriog its Intent
thnt teuonts bn relieved of Iinbllity for rent
in ereem of freeze levels hoorrnl before that
date.
7. The nrpnratn povidone llmt the lfoanl In
••rngn,wvrwl" to roll back rent% and to set
and adjnel maximum rent% find that it may
conduct inventigariono and ksue reguladonn
perrinect to It, duties (1 a, sulYls, (1), (g))
Might in themnrlvo seem to imply broader
discretion to inakr genrnd ndjnxtments of
rent levels, but any such implication is
elrerly dielwllwl by file vpvrffie rmirlctionn
d,•.erihrd in the text.
11. E., r11 if [he nnmwmpliu ler• lunnd by till -
I tonnl i, promptly crlml, a md,w,gnent pnlb
I Ion for on upwanl rent udjimmont to mob.
ject to nummary rejection on the Ground that
a hearing on the nnitb relit Irvrl was held
withiu the previous 12 munthr. (1 (1, tubi).
M.)
HIHKEINVE.0 v. CITY 01' I;KIt1i1:IJ:Y C.,1 1009
I ...I. r:.r
V 'd u.n I
:11�'Isnllt'l1I IIII' i11.111I ':111:21 •1111 JIIII Irlt'
111111;. I� r I III• ,:I.•I ll'1 JIIII'::•IIICIII> '
c.::u Olnor�, mtludmg but 2.111 hJuile,l ld'
plus a.io; i,n Ides plotablrt Lill] l.ir lieu-
I :Li (c'rl>t1 •,r'(l'.Ue'> ell ISI up„rIy fa_+-
tallon, oll lilt' grounds for I't lcll'u, :Ire rIH-
t it. uperaulg ur nlainbm:,uce , xpe u,t,
nn5ed herrulaiter.
i
In n•nted lit iu;; space or hunt shings:
.. y
L Il)''. I'nn•e, (u i', n;'ul., jr,r I(t01f Lunbnl II
, 110; ('I) shell-
by(rllllww, 'I rn l'nrirni nt I., Its ( h,,,r•'Y 1
)' is
led
u.l n' deterioration of the IN filed unit;
n 'I
n,i deterioration
.uul (1) any iailurl• Iry the lawilnr,l Irl pr„-
121 II n e,aitendrd that the defemlJnt
cI l .Idrquate Lousing services. 0 5l]
I It, nas hailed fu,nt :nlprning n•nt ion- i
Althrroyh the parties mu.t he given IN
bf ry bite 1
Inds b' the nmcrdrd asrnee oa
Y �
day: not, I, of the hearing on a rent ad-
statute awhunim • local IcgislRU.in un the'
s will hr hrn•Ina ter t Isanstd, i
pl.unent petition (y G, subd, (b)1, there is
s
the regulation of rents is proper only inur-
IJ, exprr,>ed limit .,it the Irngth of lime
'.,Inch the hearing eery be held after
far a. it Is ;, , dol exercise of the police
i,ohm
Ih,- pef 'tion is Id,•II IL':,�ng. .u1• oprn In
power. The tbn>ntullon Irvrli muff,
I
,lu• public mid IL„ partiesmay be as,nted
Ilpnn .III rnlis awl cnuu its the IJ„+,rr 11, ,.
"maA,• ft)rLC Itheir I omits all
11}' ::Ilnfnc)•s, ttn:un union rrph•arn Lllivr5,
and 11 Wuhlul
Julinances h,
or ;luy other pvrs.ins they deslgnatc (§ 6,
local, pnlire, ,.hoary, and other
111 conflict \vith IR'llrr:d
Subds. ((I), (t•).) 7lte Board'> .ifllLIal
:Iud 1,(.Klll;thrills o1jI
lawrt. XI, 4 7.) A city'ss
s" (t-l] ton.I
public record of the hearing, cnnstduting
,aunder this pro
rulicl rower vl,nl C;ltt he
"Ifp' exclusive record for det',0M. nnlft
I I \
unit' within its ,rlvrl territoryLnd In ,{
include all exhibits required u, be Ided or
•IPPhrd
subject to displacement by ge ct >Cdr it
in evidence, a list of participants, a cull_
law Int otherwise is ;is broad as the p,dire
�-
unary of testimony, a statement of all male-
exerrlsable by the Legisl:uurr Itself.
rials officially noticed, findings of fact,
power u
llitanislaus County, e)r. Asan, v. County of
rulings un exceptions or objections, :old all
(1'137) 8 Cal.2d 378, W-391, (6
Iccomnlended and final decisions and or-
ltanulaus
1305, In rr 11afa (1933) 219 Cal.
tiers together with the reason, for each.
11141 l
.t." '125, 27 P.2d 373.)
1 G, subd. (f).)Any rent adjustment
the
gra need must be "suppurted b, the prepon.
'I'be decisions vacd in support of
durance of the evidence submitted at the
.,.intended necessity for statutory autumn-
't
4 1 Petitions nn
hearing."(; G, subd. (g,.)
ruiun of municipal rent control measures t
rent-controlled units in the same building
are all from other Jurisdictions and make
'
may he consolidated "with the written con-
car that the involved cities dui not have
•
sent of a majority of the tenants." (§ G,
ants broad grili_ Ice-%eci sues,- cilas_
1
en'o ed b California cities. (See Oki
subd. (h).)
Colony ,or ens, nc. v. I y o Stamford
'three commissioners constitute a quo-
(1959) 147 Conn, Id)• 156 A.11 515 (Iegkla-
tum of the hoard and three affirmative
lure's prior termination of municipal rent
cotes are required for all rulings and dee'-
ecuilrols negated any implication of rent
cions. (§ 3, subd. (i).) The Hoard must
control power in city charter); City Of
y
hold two regular meetings a month, and it-
'llfarm( lienrh v. Flreiu od hotel, Inc.
though there is no limit nn the number of
(PIa.1972) _'61 Su.'_d 801 (city charier
,)
Its special rrreetings, each commissioner's
powers strictly construed); llln6aasadl
r,,rnpensation of $50 per meeting is limited
Fur( for. r'. City o/ Chicago (1918) 3W
)
3bd'. (h l• (k).)
ur $1;100 per )'r;,r. (§, su
IIL .G'/, 36:-367, 77 X.F....l] 903, .'•larshnl
Mlle Itoard is given additional tevonsl-
11nnar, Inc. n. hent Revinfl, etr, hood
t
Iiluies of acting upon applications for rer-
(1160) 157 Mass. 709, 20) N. E.2d .'.IH) (pr�l-
ufieates of eviction submitted by landlords
srriptiun against municipal enactment of
i
who desire to repossess rent-controlledpit"
vaTc nr t1?11"13w KA-verng civil re -I-
s50 n 26—IA
In
PAC11111 1tEPORTER, 2d SERIES
1010 Cal ,Gh
(See lli.c6op r, Cilp of Sun Jnlr (1969) 1
tiunshi 1 ....L1.:A+ •""'Ira( to :o
S6,61-63, til Cd.Rptr. -165, •160 11.2d
alts enJrm mania al mwrr
i.9
137; Iluflrmuvt6 V. Itnyd (1938) 13 Cal.
'I'irfjrns r. City o sf. -null (1914)
cannot rhe rgiwn
5111. 4.v) '�i S.\1'.2d 711 (11 )f ty h1f i7y
ly the chnl(rwr amemdnent
inherent police pmt, r'"): 1 nlrr
to
111 h','A•arlt (1937) 21 K.J. 'W,7, 132 A_Al
renC� l 1A\vet
u either directly or by entering
794.) Un the other 11311d, the deeisiuns
g' to
general 1:, -.Ys
Jrely
cuustruing grains of nulllici )al ,uwc_r r`m f_
tolth exclusion of municipalich
,:va,e in 1 1 thy tl I'rr nOwe_r
cities under artiste X1, section 7,
OCCUPY
OCCUPY Lancaster v. dfunieipal Court
lauor.
(Clara (v.I
California
r'
('972) 6 Bfo
a our .unv 1 111011 u, ul sic pyo
; City Snnla Van
r'nYEllpi5"s'lffl''i18 6511 n o�oca rnituuUr'
Rac.cfrW(1970) 3fCa1.3J 239, 245-246, 90
tro s. . c ibrrk 1'. ify aI r'
Nl (g :
(.aLRpl r. 8, 474 1'.2J 976; Galvan V..Supe-
'(Z9 Tr205 hid. 203. 107 r1 :.d
.
"Polies 1'nw'er to Ihr eImv extent a5 Ilk,
nr
�:alR,tr.r6427.152 Tr2d-930; in re I1u6-
State has or eolldd rxertibe"); Inganamorl
I
6nrd (1964) 62 Cal.7.d 119, 127-128, 41
v. Borough of fort Parr (1973) 62 K.J.
..t ',98 305 ('rant of
Cal.ltptr. 3'93,396 P.2d Sf19.)In
r
9. ,5 rlirle S1, xeclion •'', xnlnllrieiun (a0 Una
vide: "It nhall he mn,P•tent in any -I
,)inner to JIM-1111III Ih., Vi R'Ivemwl
Ibrn.unM•r may Im1 ke 110 rnfonr rill "I'll'
uantex and rngulnt innsin re•prrl In uumici
Val nffwre, subjer[ only to etri,linur au'I
limitations provided in their several rhnrt<
and in re,�pe,t to etmnttere they '.hall
Ma aubjeet to geneher rel Inwn. City chnrVn
alopiwl pnnullot ra thisConet„nilli To 61inl
aupeowle ally erisliag I'her ter,
,pert to muniripnl nfhlim ah all xnpenwln all
lows ine,nnietrnt Ihrrewith."
Ip. Inlrrvenerx %,,gKest that the I,egminmris
rnnrurrrnt resolntiun xpVroving the rhurtrr
ulm•ndment on rent control (81•n fn, 2, vale)
gave the nmendmeut the effect of a xbdx
'milite. The approval woo not of u "lilt,
uln but of nu olnendmeot to n city rhaner
that Is aubint In I;,nerni laws with rexp'N to
[4) 'rhe fact that the charter amend•
mcn,t pndlihits landlords of residential
units within the city fruln charging more
than the maximum rents prescribed by a
uuulieipal rent control hoard under spcei
Pied standards does not bring the amend-
ment into conflict with general state law.
Califnrnia has it, Mate ,,It control statute.
There is of anlr c extensive state
tion goveming many aspects of IantPord-
tenant rr!1,1,onslli 1'some o w ¢ t pertain
ipeclIca I to the determination or o e, Pay-
in-Mt—Trent.
aw
mento rent. (See, c. K•'
v.
ang, to g—rl n terms in tenancies of one
mntbp Pmt ore out mnolelVd nfluirn. (Sea
fiaellirk v, Ciiv uJ Lur AnpeRs
(1947)0211
C-1-211Ipll, 0l{5, 177 Pad r,58- City of
Panel n, 71'url: rnrn's Cr'a'p• App. 1111.(101p11
25A Cxl.r\Vlc2,l llCl, ICI{, do CuLltitr. 2KI.1
The approval woe "by re" IUIIIoo and nut by
hill" nod "(di,l1 not ill", Ponta repeal law,
generally eVVlirshlr Ibnmghout ills state"
44 Cut' R 111 :1113. 3055 112 1'ad 759. 701kriono 1.1
4-1 Cnt.AVpa
(lar ill APP-211
in Tnph'r V. (.cote (11YSf1 201
Csl. 1^i, .334, 237 1'. •10. 43, that the Jr"iala
tnrn'a retlfieation of the charter nmruumrai in
Phot tone "bud all tilt.eaeence of n plain Irlrie-
wive enactment." established ua more than
the tquivnlrnl•n helweeu rsdfi,mion and I'n-
nrtment for the purls'se of forwrloeing nble"
(inns to prolrxlurnl Irrrglleridta in the leg'
htivn prKea", (Sea in. nC P. 333, '557 11. 40;
Snake Clara Coun19 n. Superior Court (1049)
:$:I V.111 2d G:il, 5;,5, 203 P.2,1 1.)
531, 516, 303 i% .. , • 6
'
jnut
"grralot power of lural nrlf.gnvrrnvuatt
eun,istenl with the Constitution g
Of bro. d gcuerd p'dice powers to inumcl-
palitle9 "); l barrel 1'. City of I'llibillel-
t
pliin (I'/.i5) .1'82 Ica. 340, NM, 115 A "d 218,
221 (grant of "all powers relating LI is
municipal functions . • , to the full
extent that the General Assembly may Ie);'
islate in refereece thereto".)
[3) Defendant and interveners properly
muct-
concede that rent control is nut a m
'
affair as to which a charter provision
e
pal
would prevail over general state law under
'
article \I, sectiotl 5 of the Conslittllion?
r
9. ,5 rlirle S1, xeclion •'', xnlnllrieiun (a0 Una
vide: "It nhall he mn,P•tent in any -I
,)inner to JIM-1111III Ih., Vi R'Ivemwl
Ibrn.unM•r may Im1 ke 110 rnfonr rill "I'll'
uantex and rngulnt innsin re•prrl In uumici
Val nffwre, subjer[ only to etri,linur au'I
limitations provided in their several rhnrt<
and in re,�pe,t to etmnttere they '.hall
Ma aubjeet to geneher rel Inwn. City chnrVn
alopiwl pnnullot ra thisConet„nilli To 61inl
aupeowle ally erisliag I'her ter,
,pert to muniripnl nfhlim ah all xnpenwln all
lows ine,nnietrnt Ihrrewith."
Ip. Inlrrvenerx %,,gKest that the I,egminmris
rnnrurrrnt resolntiun xpVroving the rhurtrr
ulm•ndment on rent control (81•n fn, 2, vale)
gave the nmendmeut the effect of a xbdx
'milite. The approval woo not of u "lilt,
uln but of nu olnendmeot to n city rhaner
that Is aubint In I;,nerni laws with rexp'N to
[4) 'rhe fact that the charter amend•
mcn,t pndlihits landlords of residential
units within the city fruln charging more
than the maximum rents prescribed by a
uuulieipal rent control hoard under spcei
Pied standards does not bring the amend-
ment into conflict with general state law.
Califnrnia has it, Mate ,,It control statute.
There is of anlr c extensive state
tion goveming many aspects of IantPord-
tenant rr!1,1,onslli 1'some o w ¢ t pertain
ipeclIca I to the determination or o e, Pay-
in-Mt—Trent.
aw
mento rent. (See, c. K•'
v.
ang, to g—rl n terms in tenancies of one
mntbp Pmt ore out mnolelVd nfluirn. (Sea
fiaellirk v, Ciiv uJ Lur AnpeRs
(1947)0211
C-1-211Ipll, 0l{5, 177 Pad r,58- City of
Panel n, 71'url: rnrn's Cr'a'p• App. 1111.(101p11
25A Cxl.r\Vlc2,l llCl, ICI{, do CuLltitr. 2KI.1
The approval woe "by re" IUIIIoo and nut by
hill" nod "(di,l1 not ill", Ponta repeal law,
generally eVVlirshlr Ibnmghout ills state"
44 Cut' R 111 :1113. 3055 112 1'ad 759. 701kriono 1.1
4-1 Cnt.AVpa
(lar ill APP-211
in Tnph'r V. (.cote (11YSf1 201
Csl. 1^i, .334, 237 1'. •10. 43, that the Jr"iala
tnrn'a retlfieation of the charter nmruumrai in
Phot tone "bud all tilt.eaeence of n plain Irlrie-
wive enactment." established ua more than
the tquivnlrnl•n helweeu rsdfi,mion and I'n-
nrtment for the purls'se of forwrloeing nble"
(inns to prolrxlurnl Irrrglleridta in the leg'
htivn prKea", (Sea in. nC P. 333, '557 11. 40;
Snake Clara Coun19 n. Superior Court (1049)
:$:I V.111 2d G:il, 5;,5, 203 P.2,1 1.)
I;I;:I.!;,t•;a.0 v. CITY U 81: iCKULEY
II. 1117 lien• r4ridr nu 1)' licit h^urrtd nn11r
Int •Irl., unl Vmrluh• a r'alil nnwu ,nty Iruu.
11... ....... 1(177, •Ii mea r.dw ro' ll'r ,"1..11
.A. -r .r hol.,.r nn' . fur. Ire 771•,71.
rla'uJ r••rnwlln Inr Inho loll Id rI•nl
Ivllrl;. Inovidnd by .,•, ti 1 1 r'I. la null II •If
t h,1 prrronll Ilia rter wn••nllnv•II uI %II•w ill
norhL.unl, diw•urnwl hrrrrinn(N-r, Ilial Ihr
......u•lul..n r'r Lrm In nnry (Lr Ju rip ugly annm
n.ld. elm ,,Ind grrtnlu.lnr drf7l n'ul
,..,W er ell✓ ell\'`r ilu ,r 10, 1 rlr M1L...II V•�
L,7 IL.1 v..hq lou ref nmr rr•ibm:.. 1`•'•• In
0
i
11111
.1 :.I .�. I�..I .. .. 'I t.•'rl :hl
1.1,'II,A fr (\i 4ll-A .•,1.11.,7.,
_..
•
�.� .. 'dirt Irl.," :. -I .. lgl.m-I.
.uL' .-, ,nl.�! 171.1 Iilc 11. ..7 _, ,.III•
r .rL•, 1`'7_ rn aulr rrL.nory
:n•1.'1n.' '.11171 a ,nun ..I ,;nl� •I ;!'.1, pets
1•w ... m..,.'.) ilei ,� I'I, 1-e hell
v,a,al r.ln it ting•
.7. pAA!!,„1 7 .. ., 7.In
'L• I..I I'•�! 1,7r.1,11ty, m i I I a 71f ru
�.
I. 7,•r lnf 1 r:17s, In.
:.a.t.tr it"I III, .."1�•'tatlllr, tent ill
-,Viii
r. 11 h;:'1r'•r. (7 /(......
.i.7. 1�,-.rl rte, 7�.r i,I(.Ilr`. :III, �"L�I �I.S(1,'r I,IrI(
I�_ .• .. Ill, lr' iIIIIIII•Tli.il 1�7•:;ll.I�Ilir 1117
+_. il, III,,,I I:
u11 I Irn 7..1—,,7l ,, 1 •(17111
I',; 'hr I.: hi711711.7 7,11'.1II1117.., 711I1-
.IIP.
..r�IIIII
Y• ill"171(1/• r �'17I1- •.q;iLl. ell
Il.r ,Ilt'1 • nV.II 1.I�
�
.�.. ,.I tY,n
.9(11-rwl ,tl ' .71.1(!,1- •.I', •,, I
� �
nIIII'_t'r
CII II:I I'll Lll ;I %v rl .. �( h.' r:I, I al,7t I„I,CI),:I
I
nglln.11lnn Id rrttl rrllulG, lu'. rv.dl lly. =•(
,1Q /� '/�.i ;H, I ::1 shit tCr .: nI. II!P:•pl''. !
J).
:.. Ir'alr tltl 1•.d 11Un: - !1)' III,
{�},/
C✓ !�. . Lf. lr11I1111: r..!,!.11'.''ll.ll u. ] l:Olb.
r7 I,
.. .......�.-..
I•Ir.7;:. Ill.l�t'. II ,t,7j,r .I tll7r, j: -1111 771711 '
:11� ,11nrLI:T ,!IL 1111:,, "rr..I Pr 7111,
tI'::n alloll, 'or rS.0 n•, 11 •', a 7111 un!uld pCc
. hgl:j", H ll Ul ilei "Flo :hr roll rola' lir I,,%
'.pr rlq un; tlu h.7hlhty l.,.w,l „ bI br
nLL'r hRislaliun, .,ud the nn pn,lt,.m wl Icul
criGu;:' llor`nm uruen.I!i, Inl..r Irrr .rl;h
Ilpl'r,,t 117 IILV ;', I'. •' II+r Iu
I:' r'i nplY
d ill �n1 7;:11111 Ihr 11,.
:III)' 'law Ir gnlnlivr.. nlrpu,r
; ,I]I x,111 gel
d I
,' ,I ]III roused hr Ili;•• ..pr . pu'. ;.7 )ao
"7777 i I' inl v I'al_t :Ip .iii 'l 1171 9`.111, l:ti
-
•'I'!...In 1177 rLrn 11'.','rl I"I / ,li
I IIIt ilehl
(�'.ILRpI r. 117.1 1\'Itclhlr III, L. ,.
I
ha dr 1m..Ltall.>-ItLLILVI
IIS, I?I I'a"11 .lull -, IIILdnnl III rmmn-
.Lu
p.,! Innidup; wr huuallg ndro III,) 7.LILL,h
hroader a�pecl u.(, I�nJlofd'tgn.un relation•.
i'.
"-•
jsn• CuGfurnL, Water h 1,1,144•..,' I7,. r
I�"1, I:l: I'f1�1' 111 ILII .71'1.111 II'71r1."11171
'•I
1; 11 cn1 !:'rutty 111'7• ,'I::
r �plllliyr „� r.l„ :Ingelr•I (11,1,7) .53 ( a,
7.!71 171. 77,7!71 J 17•, ..' II I:I,n,11. 7'.Iht
)7' , (. (';d. ki-Ir. (dAl, tllf„(1;
:\pp.Jd Io, ..i �N, I
1111 ;14;;.11 •7„earl Ill.•,”; 11 I ny Irl
I, I'w Ic ISI.a , nphcltif In of II paraln,unt
—.�G.'.
171,, ISI
sl;dc cnn�grn• �whic}-irwiiliid['tolr7;(TFTui-
• .•I'
liter additional Inca l idiun."" M11 it
Lalli,II'r7'rl..•., llr,'a7•!I
(IF
r.l rv;7 rr:unc of hal, Ll l.l!np ul.... ,!Iglu 17,
nrmr,,supra. G2 l7a. , ICN. al
I I,I r. ;II p..i'ro, 3971 1"d al p 81, )IF
nuulel)Illrrll ul ,Cot 107111, 1'. .1 up, ri.,r
It a contended that rent Lownll is nut
I,I:ot (I'I'I) 14 (:"I 'Ill LIh, 6i, tSn, III
•.,ithm the innmcipal pnhrr power hccaux"
1'.;,I ifplr. 704, 517 P. -M 1168; !/ln.rnn V.
I: is "pr i va I lard• it, rpw1!1111; 111 n'gulalc
11,'1., (I'6.'1 2(. ( .II. \pp.Sd (I', I"' ('a 1,
prlv.ltc civil relationship.. .`.'such .In escef„
RIII r (nil i. Thus, the Inure (•w ; that a cit)'
Iwo to municipal pnwrrLhas rcr,,wcd sup'
,,It cnwtnl nw.nure would nuke.) tenant
port frnn some enmmentab)rs and was in.
11ahi1ilir, In landlord: fill' runt in rsa•ns of
:, m nc tmnc n, u ar ter o t tr
•blt,'•I c7d1r71Gs doe, not I, ndrl t4r I I,- l•grr
371__
1unetts .onsuutuon if thlc o� rm Of
w, ld u
.I provision I rnying cl Ic, :my ,",,rent
power Tl enact prtvale or I.,vtl law pnv
�lr� II I. ,nntrnded that Ihr .hal ler
rr, m •I I ( nn 17L Ats'-I" •.- "••
.7l nr od nu•m even II nth, rwk, •'r11A .'wild
II. 1117 lien• r4ridr nu 1)' licit h^urrtd nn11r
Int •Irl., unl Vmrluh• a r'alil nnwu ,nty Iruu.
11... ....... 1(177, •Ii mea r.dw ro' ll'r ,"1..11
.A. -r .r hol.,.r nn' . fur. Ire 771•,71.
rla'uJ r••rnwlln Inr Inho loll Id rI•nl
Ivllrl;. Inovidnd by .,•, ti 1 1 r'I. la null II •If
t h,1 prrronll Ilia rter wn••nllnv•II uI %II•w ill
norhL.unl, diw•urnwl hrrrrinn(N-r, Ilial Ihr
......u•lul..n r'r Lrm In nnry (Lr Ju rip ugly annm
n.ld. elm ,,Ind grrtnlu.lnr drf7l n'ul
,..,W er ell✓ ell\'`r ilu ,r 10, 1 rlr M1L...II V•�
L,7 IL.1 v..hq lou ref nmr rr•ibm:.. 1`•'•• In
0
i
1012 Cnl, 550 PAOIrIC REPORTER, 2d SERIES
not Lr adopted Ihrmigh the untiatov Io",
cs:, without th.• cmictorence of the city
council. Srvrral augntneuts are advanced
ill support of this contention; "tine Of
them has merit.
It is argued that the ch:utrr .upend
mento adoption violates the principle that
the initiative is ordinarily deemed inappli-
cable where "tile inevitable effect would be
greatly to impair or wholly destroy the rf-
ficacy of some other governmental power."
(Chase v. Kalber (1915) 28 Cal -App. 561,
569-5511, 15.3 P. 397. -UH); accord, Sitnp.rnn
r. Hite (1950) 36 Cal.2d 125, 1.34, 222 P.2d
225,) 9 -he guvonmenlal power that it is
asserted the charter amendment would im-
pair is the city council's power to raise tax
revenues to carry on the municipal govern-
ment. fast decisions invalidating initiative
or referendum measures to repeal local tax
levies have indicated a policy of resolving
any doubts in the scope of the initiative or
referendum in a manner that avoids inter-
ference with a local legislative body's
responsibilities for fiscal management.
(Geiger v. Board of Supervisors (1958) •b+
Cal.2d 832, 839-S41), 313 11.2d 545; Hunt a.
Mayor A Council of Riverside (1948) 31
Cal.2d 619, 628-629, 191 P.2d 426; Compen
v. Greiner (1971) 15 Cal.App.3d 836, 843,
93 Cal.fiptr. 525.)
Although the rent control measure ill no
way touches upon the city council's power
to levy taxes, it is theorized that rent con-
trol would "cause fiscal chaos in the long
run" by impairing the city's tax base. In
support of this theory our attention is
drawn to published articles depicting (lure
consequences attributed to rent control in
New York City and other communities oil
the eastern seaboard. Interveners cite con-
trary material praising the effects of rent
control. Although these disputed matters
would he appropriate for consideration by
a legislative body or the electorate in de-
ciding whether to adopt a rent control pro-
posal, they cannot be relied upon for the
13. Thu PlectorM[ n leek of tower to compel
iuvratheativP rommitteee or other ngeuti to
nsnemble information and make recommeodn-
purpose urged hero. Many sorls of imitla-
live nu•asures :nguahly affect the property
laa Lase (e. g, the initiative zoning ordi-
n,mces recently ophcld in .Sun Diego RLfy.
(*ontraclars assn. v. City Council, supra, 13
CaUd 203, 118 Gd.Rplr. 146, 529 Ptd 550,
and fludders Assn. of .Simla Clara -Santa
Cmc Counties r. Svprrior Courl (1974) 13
C11.3d 2.25, IIR Cal.liptr. 155, 529 P -2d
382) hilt such spQcsdativ_ consequences do
not constitute a prohibited interference by
tine initiative puwrr with the function of a
legislative body.
171 Another objection raised tit the use
of the initiative procedure to adopt the
charter amendment is that the amendment
prescribes detailed procedures for carrying
out its sub.Wntivr provision. and thus vio-
lates a supposed rule that the initiative
cannot deal with administrative (as distinct
front legislativr) matters. However, the
decisions riled it, ,rapport of this objection
concern the entirely different situation of
:un initiative ordinance that is deemed an
improper interference with the local legis-
lative body's administrative functions as-
signed to it by a state statute or other con-
trolling instrument containing the legisla-
tive policies to be administered. (See
Simpsnn v. !fife, supra, 36 Cal.2d at pp.
133-135, 722 P.211 225; !lousing Authority
v. Superior Court (1950) 35 Cal.2d 550,
557-559, 219 11.2d 457; AfrKrrriB V. City
of Sacramento (1921) 55 Cal.App. 117, 124,
203 P. 132.) The present charter amend-
mentinterferes with no preexisting legisla-
tive policy but instead performs the purely
legislative function of introducing a new
regulatory scheme.
It is argued that the use of the initiative
process to adopt a municipal rent control
meaulre is precluded by the unavailability
to the electorate of factfinding procedure.
by which a legislative Indy can ascertain
the existence of facts that would warrant
the imposition of rent controls!3 flow -
tion on partlentur ixsues dura not prevent
Ilio votem from berorning well tolerated.
Tboee voting on the present charter nmrnd-
}T.
Mim
DIRKENI'ELD v. CITY OF BERKELEY Cid 1013
I. the ta,c, relml 1:pon folthe .11gu-
nteut deal only WlIII fact fowling procedmrs
that arc . ttache,l as culidown, precedent to
p:,rricular grants of legh>Luivc powers.
'I•InI. the clap qur.vermg pnn•ision„ll the rel
cv:un si.nntc ,n ch.oter wrlr 1wfilled u,
oho,, ares as uupo.ing such factfinding
pretcyni.ues as .,wertainno•lo of Ili,- "pre -
tailing stage" before fixing county salaries
(!f'olkrr v. County o/ Los Anyetes (1961)
55 Cal.2d 626, 12 Cal.Rpt-r, 671, 361 11.2d
247), the holding of hearings before enacl-
u¢nt of a inning ordinance fly a general
law city (Taschner v. City Cnuned (1973)
31 (7:l.App.3d .19, 61-44, It17 Cal.Rptr.
214), or the declaration and existence of a
"great necessity or emergency" before cx-
cecding the maximum tax rate (San Chris-
finn ell. Co. ,..Sen Francisca (1914) 167
Cal. 762, 141 1'. 384) or of urgency neces-
sitating putting ;in ordinance into immedi-
ate effect (In re Ho/)roan (1909) 155 Cal.
114, 119, rp P. 517).
[8,91 The power of the Itrrkdey elec-
torate to amend their city charter through
the initiative is derived from article XI,
section .1, of the Constitution and is free
from any such factfinding prerequisite.
Accordingly, as we said in another case
with reference In an initiative city ordi-
nance, the charter amendment "must be
deemed to have been enacted on the basis
of any state of facts supporting it that rea-
sonably can be conceived." (Higgim 1,.
City (i/ .Sonet S/onica (1964) 62 Cal.2d 24,
30, 41 Crl.Iiptr. 9, 13, 396 P.2d 41, 45.)
L•'ven if the city council itself had proposed
the charter amendment (Cal.Conat., art.
n1"ut lout flit Iwm•fiI of it puhllehell report
of if... city e"oncil•a rental holuing cel
um sod of nrttnmenls di,tribute,l with the
I n lint, as well u, the information ui,aemi-
nnlwl during the earnp,lgu prwxelinx the
eb+•tion.
la. Th. nnnwmdunt Ihut udepl ion of u lily
hnllnt m.nanr, to im{asee reaidentlul rent
control is iii-Olabin berms,, lennuul out•
,umber landlord, in Wlllu l Will by Ihr
u tmro,n of rent antral rmnrimrnt, in Call-
fornia communities other than Berkeley nod
by indirndoae in the record that rvrm the
NJ. :.1{I.{ 1.." ,uu[d h..,t probe the eouucd
mrfill ,rr: M,owaUm,s for doing so (County
..f :.,.r .in./.d;r r. Srpn,riur C,v,rl (197;)
13 t_ 13,1 21, i26-727, 119 CdLRptr. W1,
i,i/ :J .lo;l :,n,l 11,111111 be trquit,d to
wd;;r Ihr .n lll'lldnlClll'S vandsty Lr its own
term% t-athrr th;m Ly the mots%,1 of of in-
flucucr+ upon the legislators ((lily and
C000ty of Na, Pranctxo r. Cooper (1975)
Li Cal.3d 898, 913, 121) Cal.Rptr. 707, 534
P.rd •1113). The subjective motivations of
the voters who petitioned for and approved
the :unendmrnt's adoption are similarly ir-
relevant to our inquiry, which is therefore
unaffected by any comparison between the
factfinding procedures available to lite
rlectorne and to the city council
110) Finally it is argued that Initiative
rn.Ictment of local rent control measures
violates Lwdlords' line process rights br-
c:mse tenants are in the majoruv and will
always vote ,n favor of rent control as a
result of their direct economic interest in
the ontcoum.11 The fact that the initiative
proces. remills In legislation reflecting the
will of the majority and imposing certain
burdens upon landlords can hardly be
deemed a ground for holding the legisla-
tion invalid. It is of the essence of the Jo
lice• power to impose reasonable regulations
upon private property rights to serve the
larger public good. (Qurrnside Hills Real-
ly Co. v. Sash (1946) 328 U.S. 80, 82-83,
66 S.Ct. 850, 90 L.&I. 1096; Clemons V.
City of Lar ringdcs (1950) 36 Cal.2d 95,
102, 222 Ptd 439.) Moreover, flits ran be
accomplished by the initiative, as in the
case recently before its in which a city
lreeeut men"re had Tenn than Ihr ,n mplrle
ntp{lort of Irnenta. '191, finding, allow that
Irnnnta "o.11tutn tk9 percent of Iter►nle7e
population; yet if.. charter amendment
paunl by only 52.3 Penni[ of the vole. More-
over the declaration, alta rlml to the f»mplainf
In lolerventinn, statim the Im"eata of the
oritrival intervene, ("Roll of whom ween lao
er ntricken as porde,), show that the rent con-
trol measure reeeivel supleorl front mune hum, -
.we", who had such concern, as the Amer.
vntlon of Ihr edetlnle 11UWin9 nna•k and the
retention of low.income realdents it, the city.
10iq (Gd.
550 PACIPI9 REPORTER, 2d BERMS
t'Irrtorate iuu,.0:,l w,d atlopttd :o, urdi-
nance that in effect prrrvnled the owners
of huts near the uceau from building high-
rise structures that 1.1111,1 have blocked
views from larger arras located farther in-
land. (See .Son IFn)u Mfg. Contractors
Asan. v. City Cniotril, supra, 13 Ca 13d 205,
jig C:d.Rptr. 146, 529 1'2d 570.) We cx
pressly recognized the propriety of using
the initiative process to enact local Icgisla-
tion advrrsely affecting only a snctll minori-
ty of the population in Dutyer v. City Coon -
cif (1927) 200 Cal. 505, 253 11. 932, where
we rejected a claim that a Berkeley zoning
ordinance was beyond the initiative and ref-
erendum powers because its sole effect
would be to rezone a tiny fraction of the
city. Wesaid:
"It is a fundamental tenet of the Ameri-
can system of representative government
that the legislative puwcr of a municipality
resides in the people thereof, and that the
right to exercise it has been conferred by
them upon their duly chosen represenut-
fives. By the enactment of initiative and
referendum laws the people have simply
withdrawn from the legislative body, and
reserved to themselves the right to exercise
a part of their inherent legislative power.
. . . It is a characteristic of much leg-
islation, especially in this age of intense
specialization of occupations and interests,
that it operates, to a greater or less degree,
more directly upon one group or sec-
tion of the population than upon another
1.(2(X1 Cal. at p. 513, 253 P. at
935.)
'The vice of respondents' argument con-
sists in placing undue stress upon the sec-
tional interest which residents of a particu-
15. Our Inngun90 In Ifoppinp V. Council of
City of Richmond (1915) 170 Cd, 000, 017,
160 P. 077, 081, that "[tlbm MAY be
grounds for excluding from the operation of
Itbe Initiative and referendum) powers Iegie-
]"five acts which am special and lore] Ice
their nature" In not authoritative $hire we
further stated that no such question "Al
then before us and that "we elprese no
Opinion on the subegre, (170 Cd. at P. 610,
15o p. at 982). The decialoee to CAas
Lir distrirl ma)• l,r expected to have in re-
strictions more immed,:dely :,ffeeting their
district, and in underemphasizing the inter -
,.t of the community as a whole in the ex-
t,lence of it cnmprvhensive zoning plan. It
surft he preiumed 11,111 the electorate rLZ
car( in file in eresls u/ the entire city, and
of the part to be affected by the proposed
legislaliou. If the ktw operates more di-
rectly upon only a part of the citizens, evil
intent or dcsiKn cannot be prestuneV
(Italics supplied; 200 Cal. at p. 514, 253 P.
at 935.) 1n
(11,12) The scope of the initiative
power reserved to the prople is to be liber-
ally construed. (Farley v. Healey (1967)
67 Cal.2d 325, 328, 62 Cal.Rptr. 26, 431 P.
2d 650; Blotter v. Fwrell (1954) 42 C:d2d
804, 809, 270 P.2d 481 ; Ley v. Dominguez
(1931) 212 Cal. 587, 593, 297 P. 713.) Ju-
dicial protection of landlords rights with
respect to rent control enactments such as
the present charter amendment lies not in
placing arbitrary restrictions upon the ini-
tiative power bill in measuring the sub-
stance of the enactment's provisions
against overriding constitutional and statu-
tory requirements.
Conflict Bettoern Charter Amendment's
Bviction Frovizinna and Genual Laws
The charter amendment imposes two
kinds of restraint upoo eviction proceed-
ings: It limits the grounds upon which a
landlord may bring an action to repossess a
rent -controlled unit (§ 7, subd. (a)) and it
requires that a landlord obtain a certificate
of eviction from the rent control board be-
fore seeking such repossession (17, sub&
r. Ifalber, nupm. 29 CaLAPP. 561, 158 P.
aft? anti starbuck a City of Full Iwldlo19 7)
34 CabAPP. M1, IM p. IiSa,
he
Initiative suit referendum Inapplicable to b-
rill ordluan", for Or"t Improvements tc
be financed by the local property owner,
involved cities without charter, mod were
based on a r,untinwilon of state street Im-
prov
were sdistinNtehedment nin IJlmyee, (200 Cal. at PP,
517-010, 253 P. 032).
R
1001N PCLD c. CITY t,F' Iii;ltl{L'LhY
11.1 1,;111 llm;c IIIc �
Le r,l unfrl unu Ihrr.� ..d r;;•,r u•,. U:u: I..1
hn.r, to Ih' Luulhnd L'J.nr I., p..y 1• n'
rrt I„ prrinu❑ all .•hLge l..n u( Ihr Irnan,-)'
.tiler 11"lirv.'nnlnuc.mll „( II rllli .eller Int
kir ofuL,lanti;d J:ravage bl Ihr rrut''d
pl r:nr.r,, "mrirtnm of ming Ihr pn'nu+''•�
(m :m illvg:'I put paw, 114111.1 ,ri n'a<un
.ddr Luull„rd ecce” 6,r rcp.lir io.prclun.
err ,h•,w 6111; I" a In u,prl-1 il,- portha':rr. ,n
Irani felt ulg pu.w„n,p In .111 oomallnll[ed
•etLtrnalL f� 7. subd. cll(I) (4), ("I
(7).) :\ arroltd .+ucgol)c.rn •r.b of Ile
laudlunl's p/,kid f.mh nGrtnlon lu wrthdr.11,
tlm unit fr'nn Ihr urtal It n...119 nulket
fnr ,al.upal„ r by Ih.• i.n.dL.nl .n + u'nnrd
rr•Ialives of Ih„ Iandiuld Iv y. >uLd. sal Ri 1,
or fnr demul.tl,r11 n: r,.uvrr .., 111 In uom
hnusiny use (11 .uLd. 01)141..
111.6111114 Integory i, the reill,.l of the tem
mu holding :It the of a 1,.oe
("rcnLd honing agrcem"r.t") III( III" it
writ tell nvlcw;d or estcn,lon fill III, latae
duration a:, the original It;,se and un Ic1 nn
that arc materially the Same. 15 7, sold.
(a)(5).)lu
131 l he,c pc rmiticd l:rouml, fnr cele
tion appear to cover most if nut all of till.
grounds that W00111 otherwise to, avaiLldr
except that of Icrminalion of the tenanc)'.
\u other'nnittad grounlls have been called
to ,,tr aurnliun and we ",ume for p,,•sI-nt
pnfposes that illy. effect of the provnnm is
simply to prohihil the eviction of a tenant
Ivhn is in good ,.Ianrhng at the exfnratlan
of the tenancy ',,'less the premises are to
be withdrawn from the rental housing
1!,,, 1015
nd ,.II , •.1 .1 1 v, o.,
L ,. I, �, i.'., r'In .rd.1� �I L:. pl •,Inlnb.m
..II"..e. In yn'vrut.;tg Innrll.ndo Ilam Ind
luq ,nd Icn.lnh 111TAnr of :Leu :',willing.
17cg:11 ani, •'1111, ,J trw kir their
npp.,,in•m lu ..;Q)IkIAl.,ll, Lr, 1"1113111 ill
Ira, 111;...;.. I�cr IC.•. 1' .. Binh 11'N.I)
I'.`•. Ili, 1,,7 111, 41 }.I. I.
d, ,'.; llrubej r (::;. :Lal!iman•,
2113 %I.I. 203, 212., 111: ,\ ',:'I'/ )
I fi. The lu xrnwnlione,l prneieiull dm•. not n•
quire
tit, Innrllord to killer it,, Ixnnot a r,-
u,•u1d leu„• hill ximpt, rerpliren the temlut In
,,,,,.pt ally xo,h offer Ihxt is Mille on lain
It( nulj,a'tiun In ,•.ictinn. In the I.II ., of
I r,an•waf leu+r' 11” 1.1'.111', rvnlinu,•d 1"„neN-
,in1 tnget Ler with till• lun.11nr'I'n lo.1p11111,r
u( n•nt nOnr eepimtinn of the Irxw term ure-
al,•+ a p,•rinfir tenancy. (Civ.('rxle, 1 1114.,;
If rnrl,+ n, Il un linVprn ern Oil If (Inn C,r.
(Iu:iLl :17 ('1'1.2.1 :1:1, 1112, :It V'2d gill.)
)14. f'/1'Llioliff' 'ontad ihall ;Wi
..i OR. 171111110, Ln r..rl ant I -
pl celuple,l Le ^"neral Alt" I,.w lade of
11. I I'r:,r.dntr ';cu,m IIld. Ili' ct nun I,
wai,c, Ih, nmUnu.d 1. n.
If .. t. 1.O.t's fns.
'•c, .lila
I!.. I.
ll'•. nu I'
form
u( aul.1 Itot d'n au.rr fill010, 111,. Luul
Inns u:av .r. nerl pn ., ..n.'. n. .I:uunel )•
In,.. cella p;. under f ..:r u(, 'I.I I'1 nt•r,lnre
scr•;ut. I lul rt +eq L':s' l,'� ••"'r ♦Ienl-
lnty pn r. l,nmv Arr .,,•I nrr .n ac in coil.
the charter :,ineu,bua"I's pnlri-
eon fr,l!nJJulg I31111"I"S 1. 1 r..,er
,L>.nr1. upnu expn'1bu.1 0l a I'u.nlcY if
Ihr' fl\IrfNl\e u( the >I el airsr, snfflcfcntly
dislinrt from I,,at r.f fill.uu•nL (Sec edfxnn ;r• .ha rl rr aumnJ-
•. Su out, sit.
',for (*r
fell, 7(1(.kI 2(1 S:I, Still76Cal Rptr 1.12,
1;J. I,."
.d ,ill, 1'rnrlr :'. llurllrr, ,nfr-t, R
944 of l .tit I .d Ilptr. ISi.)
The Imr Ill ise If the nuLtw Ld deulinrr Stale
till•, Is rro",Io"TI Ten stellnrs •intplcmen��
.611': I�or(�?,ylpptilY—r!&h��ij}' 'r'rmittin•
him to recover pu...Smon nun• the Conseil.
sna1 Ln yn,
for the lfllllnt'♦ ",nine;•-is^atm
all end 111 Inn l ra 11111• cha rt et an l elrJnle ,-
rhmtltrtlexrn( particular i_uun,h Ym'2tr.
property e police
17 'Nothing iu (lv rhnrter nul.ndlnear pre•
rlu•Ire o Iu udlnnl Irnrn Cieing nnnre It Ila•
u•nniuln„n ill n Inn xnry m; 1111, Il ie
1p18)e orof
I.•nnnry (•,•e I:i v.l'ude, pp
II.: + 1 rinikinhle kir 111” l nr.ptr stn ion,
•1114••'4 an 1, onkel n I'rer,llP"'i
y,phrxnuo fnr o Irl ileal" „f 1Ili' 1iuu. (t
v.l+I. Ilu.1 tl'hnl I, pnrhdnl,.,l i, 11x11111
Ila• I•nnil-lino of Ila• I.vuury n+ n Inlxix for
nlr11111 Vrm++„1611Its h116r aln•.,f unulher
I,.•nnlv,ihlr I:111111d fur e”" to'"
I
P.t
I lie Inert ricer u,.n •. �,.� _._ .-
pilin posvrr ereatts such adefense dues
not bring it into conflict with the slate's
etaWlory scheme "Thus, a landlord's vinla-
t"lls of a city's housing code mtv be the
basis for the defense of breach of warran-
ty of habitability in a summary proceeding
Instituted by the landlord In recover pos-
session for nonpayment of rent. (Green v.
Superirr Court, supra, 10 Cal.3d 61(1. 637-•
638, 111 Cal.Pptr. 701, 517 P-211 1164;
Major Ti. Delis, supra, 26 Cal.App.3d 62,
IQ_' (:al.kptr. 001.) Similarly, the statuto.
ry rernrdies for recovery of pussessioo and
of Unpaid rent !tier Curie Civ.l'roc, §§
1159-1179.1; Civ.C_ode, § I'151 rt sc(l.) do
on, prrrinde a defers, based un municipal
rent control legitlatiou tno,cted pursuant to
the police power impn•:iug rent ceilings and
limiting the grounds for eviction for the
purpose of enforriog those rent c, ilings.
(1,yawtmort v. Borough Of Forl Lee, supra,
62 N.J. 521, 537, 303 A 2d 298; Is Warren v.
I'ltihldolphia, supra, 382 Pa. 380, 395, 115
A.2d 218.11
In addition In limiting the substantive
grounds for eviction the charter amend-
ment prescribes prncedurts that a landlord
must undergo as a prerequisite to seeking
repossession of a rent -controlled unit. Be-
fore commencing unlawful detainer pro.
« edings (Code Civ -Proc., § 1164 et seq.)
the landlord is required In obtain a certifi-
IB. .5fter the /nganamurt de:i+ion New .Terser
adopted ntNe legislation reatrietiog landlord,'
tights In evict tesideatial tenants ulwa fermi-
notion of it lease or periodic tenancy. (N..T.
S..l. 2,k:1"1.1 et seq.: nee (7orden.t c. City
aj Pmmie (1974) 140 N.S.Suver. 800, :3 -1
A2d 2:A.) This leginletlon was held to pre•
rmpt the field to the exclnsioa of similar pro -
,inion, in municipal rent control ordinnnr,..
(Bruerlli V. 1101019h of New AlilJord (19""')
64 \.d. 579, IHt1h-(•�fll, MA A2d 19, 42-3:1.1
19. 15 r,,ntrnrY result wen renrhed In lfeubeck
r•. (,'fly of Baltimore, aupon. 206 bid. 2M, 210.
107 n_2d 09, where the provision In it city
,,at control orddnancs prohibiting evdrtion of
tenants In goal alamling even After enplrAtIon
of their termn won held to mnllict with n
rrrtifit3te 1l) if,,. levant ur tenants will)
than have five clays in which to request a
fall hearing conducted under lilt rules gov-
erning hearings for adjustments in maxi -
noun rents. (§ 7, subds. (c), (e)•) The
hearing must be scheduled within seven
days after it is requested (§ 7, su1xL (d))
and lite Board roust grant or deny the cer-
tificate within five days after the hearing
i, held (§ 7, solid. (f)). 1lowever, no limit
is slated for the time within which the
Ituard must give the u•nauls notice of the
application after it is filed or must act on
the applicatian if no hraring in requested
following such notice. lblreovrr, there is
an express provision that either party may
seek judicial review of it decision of the
Board to grant or deny it certificate. (§ 7.
subd. (g); § 9.)
To he granted it certificate the landlord
nmst carry the burden of showing not only
the existence l)f permissible grounds for
eviction and that the tenancy has been
properly terminated by notice but also that
there err "no mdstanding Code violations
nn the premises' other than those "sub-
:.tantially caused by the present tenants."
(§ 7, subds. (b), (c)-) 3lnrcover, the
Board is forbidden to issue a certificate if
it finds that "the eviction is in retaliation
for reporting Code violations or violations
Ili this Article [the charter amendment),
,tale atall1la pern,iuInK nurh eviction.. 'Ciro
marl applied a role it had Will down In earlier
decisions Ihnt Ictal orlin air ainvalidly Mo.flirt will, mile inw if they ••'pmhiblt Gob
rermit,2 by stamle er conntitution"' ('!1
11 d. at p. 208, 107 A.^^_d or P. 10'2). la CAI"
fertile the, question of whether n toed enert-
ment in exploded by %lute legdniatiun to not
nernnsrily concluded by the literal language
of Ili" perduent etatute hilt depends upon
whether the state hon preempted 1110 field an
indicated by the whole l,nrhoae and scope of
the state legislative erhom0 (Abbott m Oily
eJ Lm Anyrles 09M) GI Cnl.2d 074, M2, 3
(ld,ltptr, 158, 849 P.2d 074; /'ipoly u. Ben-
no, (1042) 20 CAM'd 4(10, ;I71 172, 12.5 Ptd
482.)
i.
t
,
1tlltK f:NYI:LU To. ta'rY of 1IMMMEY of 101i
I
P nl .,VI
,n 1.n •il;,a n:n'� '1.., e�u.un,, ,a tel rn
"I I o, u. I .0 uuu..ly
Ln, uq• ri; ht•. iu.. 'hl. 1 is le t••r .\luro,l
ions •. i.�Llq: tIIal Ibr l.uull�rl.l I,.,II I.IIh•d In
Too, ,I I'.•! i) .e linduy; ad
,.Ll .ul a relllh,,nr of .,I,n..... Ile lens,
lu 'll,/ Lot ��1 �.h1 Il.r r, I'wilt e u(
i.( Iii. lh.lnrr :mirud"'. it 'sullhl nut Iler-
rodC ri,rl;tlloin ar IIIc. plmui.c, III on the
nnI Ihr ldnlllurd In marl IIIc "rfru,c IIv
issue, Irf rrrallamlu prrJudes nnu;uur of
•.LInI; tlut Iry ,rnlld h.,%, quabfoA fur
IIII• rrrtiflr;Ile It'I}ltd C',', nl the ,,5tcnce
Cie „•rhfl,'3It' had he :Il,lrllcd for it lint
,If :Illy of till' grounds fllr IIVIetion pernllt.
N'old.1 pruclode hon from Hilal ,I(Ilply Ile
1,'11 Irl' \IlhdlVhlllll (.,) „f section /.1Y
' IIHY Ile had clever gold' Ito'elgh Ihr prop.
1181 A, Areedy '•I at••.e the charter
or prnredurrs hr fore Ihr rent roulrol
;mlrmhucnl is incaLd In der stent that it
n:uI =
purport, Irl ragul:d, a field thal is fully or.
Thr orninary leposses,lun procedure
rupi.•,I Ly grnrall .cur Liw, (I/rnly r•. In.
((.lie Crv.l'ruc., SS 1159 1179a) is intend -
rlutfrial :h.. (',rue. (Io)j3) .11 C:dld 118.
ill bl Ile a n•Iatrcrly supply .,fill speedy
122, 2itt 10_3d I ; fn. NI allile.) 113inliffc
remedy that ubvlatcs any naevi for self-help
nrgr and flit- Incl co'irt found that to IT_
by Loi,llortls. (Kasen )'tont (1973) 9
quirt• a landlord Illoit.Iill a rerldicad• of
( ;it .3d 39, -1.4--N, Int) Cal.Hplr. 783, 507 1'.
eviction Lefnn• '.rt•k ill: r,n To -rover posse,.
AI 87; /�rrdan v. Talhot (1961) 55 CaUd
,ion of I rent rclrtrnlle,l unr, invalidly con.
507, 1,04-1011. 12 (.al.Hptr, ;.;ti, Jill Ptd 20;
!lids with srctan., 11 i'I thrnogh 1179a of
ser I;ndrry v. ,V.Irmo 11'17.1 {Ili U.S 56,
Ill.. ('ode of Civil I'rnt.11uch pnlvih.
71-71, 92 tial 1. f(n_'..II I. I'd.!d .46.1 fn
landlords with a stnnnlnn procedure for
require I.uldlords Io fulfill the elaborate
raerri,ing their rq;}es of rrpu, •c5nion
p rr•-quisites flit the issuaurr of a certifi-
:,gaiu',I lenaul,. 1b l' agrrr. Unlike the
.It, of eviction by the rein runtrul Ward
Ij ration•, irnml I hr chatr amends
reulent
Lefuer they rmnrtll:nce the stalulury pro-
uuun clhlr >!e rents and u n the
(eeehnr, wnnld nullify the nuriilrd summit.
.(Dr A11k11pn, .Wallin rte af(rl;l_
Iy n.rturc of the remedy.
summaryre p)ssrssion innxrdin s one fly_
Coy charter provisions purporting to Im-
makinrsurslantive 7;TT, se•. i- a)e to
pcwe far less burdensome- prerequisites
t err uirenrnt of as certifurite
the exercise statutory remedies
alum se o
�e�n.�;m�tt �the
lie.
o et-( Iclfon rats.have
been held to be invalid invasions of
tw'een t e landloril_antl _t 'udici,^I
the. field fully occupied by file statute In
proceeding. "Illus if a tenant were per-
liardick r. City of Loy Angeles, supra, 29
20. In nddititn to, in,-.,- olio-nmOm en ranking
drninl n( lin rvution ,•.-rli iralf, no ndl,tory
nrrlion 7• nulflivnien (.•), diront,h its inmr-
loruliun of section 0, eulxlivil,(on ills tlpprnre
to rlier til, I,nnrd dis,r,•tion In reject nn ull-
Ili,vlinn for nil eviction re•riifirnV euuunnrily
tit ill,- ground That fssoanre of the certificate
was Ilrrviounly druinl after n Ilr.,rinK 111111
wilhin the prrr•nlinK 12 uwntho. regardless
of any inllrvrninfl • singe of virrumntinrn.
(Fre• fn. N, onfe.l
21. Ur(rmbw l!r bro•f mule,: "'1'Il,n• is uolh-
Ili;; u, prevenl a lundltnf little? prrxenlinK
7.o- Ur Ili,- nnlawbd rb-tnint,r statues wbilr
t-li u;t Illy cerbfie•aln e( olvicUnn (ruin tile
Ibod Coetrol flo.M." '1'o lilt, ivntnlry, wh-
dit'i,ino (K1 of •rr,iull 7 provides: "A land-
lord M... xerkr It reamer pmmweino of :n rent
ronlrollesl unit wlfhmn lire) nbteininx to car
tifir:dc of cvirtim, ehu11 be in vio-
pyo a 10—pe,•,
lotion of This Article .. (Italia
enpplieol.)
22. We do not reach the ilne.tiun of Moll
Ill.• dr•fenrblnt city well haw• impoerd the
pmrl•rpeinilre for a rertiflrntr of evir(ion s•
dira4 anbetanlf'e condition., upon the riKht to
eviction. Intervrnen argue that defendatu
nnlld impinnent ill, Ie•fil-ira of prrventing de-
trrinrolion of exboinx huuaing and of limiting
ellnr:rl,ble renis by depriving landlnnls of Ile,
right to coli -I bonnie (mm uniu nal anlorrn•
int, In houninK axle nlenderdn or in roludiatlnn
(sr Ihr ene.rti on of Ierl ,in basso, riOf Ie.
'1'Irr nrglunrnt ie by,elbo,stl at, I]e rluirlrr
:oln•uduernt mnk,a Ihr,, nrlotrn Ill., lent* for
Ihr role, toulrll Irlenl'n il,ene... I. to of cerfifi-
orte of rvirlion rather Ibna ini,i lix Illrw
:n ronditirnrn upml 111e right if rrpe,rrxsiml
,•elorm,ble. by Ibl, rnurm
1018 Cal. b66 PACIFIC REPORTER, 2d. SERIES
Cal.2,1 661, 177 11?d 5�4, d.uuagcs for pct
;orl:d injunc, resullim; from ui fall on a
broken sidewalk wire lecvvered from the
..
defendant city by ., plamtif f w•hn had filed -
a timely claim in full cougdi.mee with the
applicable stale statute prior to commenc-
ing the suit. The city contended that the
claim w:, insufficient as f:lal became it
did not include the more. detailed informa-
tion prescribed by the city charter, arguing
"that its charter provision as to itemization
of damages is merely supplementary to the
general law—an additional, not a contrary
requirement—and therefore is valid." (29
Cal.2d at p. 666, 177 11.2d at p. 561.) We
held that the smtute had uccupied the field
of filing such claims against municipalities
and that the city could not impusc more
onerous conditions with respect to the re-
quired contents of z rlaim. We rejected
the city's contention that its auditing pro-
cedures required more detailed informa-
tion, pointing out that the statute was in-
tended to provide completely for the city's
needs for information about claims in ad-
vance of suit. (29 Cal.2d at to. 667, 177 1'.
2d 558.)
Similarly in IVilson v. I)rvifle (1957) 47
Cal.2d 852, 306 11.2d 789, we held that an
inverse condemnation suit against a city
could not be conditioned upon compliance
with the claim -filing requirements of the
city's charter. The slate statutes fully oc-
cupy the field of assessing compensation
for condemned property and therefore a
city charter cannot make the recovery of
such compensation more onerous.
[19] Thus we conclude that the present
charter amendment's requirement that
landlords obtain certificates of eviction be-
fore seeking repossession of rent -controlled
units cannot stand in the face of state stat-
utes that fully occupy the field of land-
lord's possessory remedies. Insofar as the
charter amendment simply prohibits evio
ion of_t� tenants w�to areiii good scan mg'
except for tb ex'pi-eration o v en. -
cies• it is a feaSnrlaU(e means o asstirY
coo Iinnf,(•_)jM maximum rentlimy�,},yH7
Mots not conflict with statutory reposses-
M
for
lu by
�i-nfs :nc epos I u mostly d�
IrirTili • i n un •e grrltl
(allot stand as it has nm
(.,.7. 77. Kco7ly 949)
dtyl K.Y. 140, 145, 89 N.17.2d 565.) AI-
Ihough the charter amendment contains a
,cverahility clause (§ 12), such a clause
,lues not require that we salvage provisions
which es -en though valid are not intended
lu he independently operative. (Snnln
11urbnra Sc);. Dist. v. Suprri„r Court
(1975) 13 Cal.3d 315, .31. IIS Cal.Rptr.
637, 5.30 11.24 015.)
Regulation of ,11aximma Krsidenriul Rents
in Iferkeley as an Exerri.tr• of dee
Police Anerr
%Ve have thus far concluded (1) that it[
the absence of conflicting or preemptive
state law the defendant city's police power
within its territorial limits is as broad as
the police power exercisable by the Legis-
lature and (2) that general state law docs
not preclude the defendant city from im-
posing maximum limits on residential rents
within its territory or from restricting the
grounds for evicting tenants for the pur-
pose of enforcing those limits insofar as
such control of rents and evictions it: a
proper exercise of the pulite power. We
uuw consider whether defendant could
rightfully exercise its police power in this
manner under the circumstances estab-
lished by the record.
plaintiffs urge and the trial court con-
cluded that rents cannot constitutionally be
controlled in the absence of an "emergen-
cy” which the trial court defined in the
language of Lray Lcasiny Col. a. Siegel
(1922) 258 U.S. 242, 2.15, 42 S.Ct. 289, 290,
66 L.Cd. 595, as a condition "so grave that
it constitute[s] a serious nterlace to the
health, morality, comfort, and even to the
peace of a large part of the pruplc of the
Is—
nll;m:NWr,ld) v. CITY (11' BF:RlU1LI:Y Cilli ]n]�
ill -
II' R n w1
an.L.ny I.brit Ll• them bout :ul nn.I
1'11, —,n
P A u.n
inR with n•nl rlmfmlw impunNl on if nation
o I. all„'.I'., FLY ,:'S1 ,II,•,• ,'
II; 11, "it 1:11'. 1.11,11.111,'Y"noolog
1
I•, :unq 1,,l..ou ,oul 1i ..I hr •.,'n 1 ,,.
Ib, .•,w.ro • 11. 1I .1 r.d added that "II the
'
i.i•: rnwl I P ,II .i,, U I,'n, II '.I 1 P2,
y ll .1 .,, ,111 ,edy wloill f lur -1.11 a;r i,
l
4c i-. i.'1 .a, n'jel'h"I !al• ;a.a la:.,Ljv
n1 I.. Ie 1.1 I., Igao1 the filet. that we jm
I thorny nudrr its war ImWrr,, In 1•nntml ninon
r:nr., eudcr for I'mu tr„olh .lel.': olomut I.,
it, la.I) ! uo'.. e • shlmbl Lr 1..'nprllcII Ill
Cot.gn.,, null& rsrreise fila war powers to
.:•:w Y,Irl. T1'tle st al isr, 11.Ir11.1 In P,.'l1
..., I1.1; ..11 Ln Las rr.lseed In op1•Iarta."
1
In 11..:11 1,1111 a gl a,c In m•anq '.hortagc
(d,; 1'.` .I pp =..Id.:.1'J, dl ?t'I. :d I,
nhn rfaKrtl l'lI I1nNI by Ilrr domllllll lriltlml (if
ff Jlll111('tom die 1'e„Idoo' ill
40h
I
I"ni's incph•111 Is. Ilnrld 11'•11 I. Ihf
(2111 'I hf v' ."'CHhlll, fUlll 1'11.1111; fell,
1
e.1aII11C, 1)fntldrll In Cl 11'1'1 Ihll 111 Ing .1
nnnl ub. ::, K.I lhmgurtl, I).
)
periull of .ggmisinatrly leo yren lena,lls
NV,, 1'urh Ifilling q
the .,fir 1111:1111should
b< imnnmr from r•. na toil if IhI•y'
:$a'1 of
"f 11i orld 1l al I an• the last ul which the
paid a 1ea<onnIIle rain In Lr drtcrmfinet[ fly
I:1111•,' date, Noprme Conr1 Is '•Io clI,
fF
Iht' Cnll rl'• abd 1Vefr nal "nl,j l'C I is Hialde
"all),(,0•IdelV.1 1111' L,+lent It, ,Vhich Iht'
111
.i
n1Ul If Ill, houllofd dal bol cck W 1. loss-
llllf plofe„ llall�en 1 ,1 lilt fifth :,fill Four -
Ill
Kin 111,' hrl'II,ISrG ill, 1,Cr]n1111 11 s,' Or dl'OI-
r,'rwh :11ur11d meal'. allow sta'c fel;isla•
ij1
nhlflrtt. $imil.lr rnngrr+siren;d IrgiQalum
lure., oI bn,ite, rxmclsutg cqule:lent
for the UIsllicl of ('olnnll,i,, nudrr w6u.11
rent controls.":' flow
'hc n'nu11 owed Lyn I•'n:wl rull.l must Ihr
els, Io unpu,e
Ihr u( 16e
,;,lifeuulrss un,d111"I be a lull, .. n•nni', eta.
:w nln:un.0 of ecuhfhun
nmrt'c ,:cess :u fel:LIVII flrldt ('Ipilo• and
,t
lip
,vac uplwld a. agalml ,fine pont", I,1,1uc
s.1• Irid. „ill detnnn.l -It c that the
'
tion, in 111". A' r•. /f:ach, 'opus, /$ 1'.ti
l,:y;c
•• ctnergrtlt'!' tlbctrllle I:Ivr,l1f11 Ill upholdL3;.
4l .1,.u.l,I. 1 :j hJ 1.. 1•.d. ir63 1fowevrr,
measures if mine hall half -k
l{
r 2 NA
uurm Cbrl. n..1 mtGur ( l Li)
in L'lNN.
fell'-nfllful
I- uo longer operative as n
•,
U.S.1. phi, q.4 I. Ld RFI, the
I,Sid3, '1st
century ago
formulated n5 a special escrpuon V,
court made rlr;tr it would not Inb•rate t's-
was
hmiCdious on the police power that have
Il.
�'I?
tension of these rent contrnls beyond lite
period of the war etnergency. Paetd with
lung since cea,ed to exist.
g
a challenge to a rent reduction order of
AI the Umc of itis rent control decisltms
life District of Columbia tient ('omm6siun
in Ih•' early twenties a majority n( the Su-
iJ
dated August i, 11)'2, :,list effective as of
III,;", (•nest way of the virw 11 tile lib -
the preceding March Ist, the court tennlvd-
ort) pr.aartcd by the due prorc,, clause in-
Ih
eel the case for &-termination of whether
eluded a frecdmn of contract which nor-
I
the emergency justifying the s'atute still
ntally prerluded either state legislatures or
existed un the relevant dates in vices of rr.
Congress legislating for the District of
duce& payrolls and new hold-
Culuolo., front regulating; tiro amounts of
government
ing activities in the (:fly ill Washington.
prices (it wages in hnsinessc, "not affected
f
lF�
The conn shoe& that the mrrea.ed Cost of
with a public interest." LegisLuilm invali-
23. Sriflvr of flu• Snpreml• 1'nurl rnnr,, drill.
ill -
II' R n w1
an.L.ny I.brit Ll• them bout :ul nn.I
Ino Ionsilh•nng f:utorw p.evlinr In iwtividnal •I
inR with n•nl rlmfmlw impunNl on if nation
r::_I 1' S, lit lips. r,l(V^,hm• ri S Ct. f
nide basis by Collgreat during uud immelliuo•-
latollonln f
' ly offer World War 11 n•nrlu.l till.,, i+cur.
6111 or ('=) ImItiNg rrut-hsinc nal+rn in• ,.
• In lbrulel v. IV'illinghnm (1944) :I:1 U.S.
to .-(Piet prior to hearing olowrfons 'rum I I
I nou. Ill S Vr. (:41, x`t LEI. .N9.2, the mon
Lug llonln ('r21 U.S. lit lip. 51fa-:fill, rH 9.CL
rob,id••rNl wL+Iber I:nngrl-.,.: 'olll•nlNl uu.
GII1. It'nn,l. r. hiller Ca. (11Wn) :4'V I'.S.
I thorny nudrr its war ImWrr,, In 1•nntml ninon
Ins, G4 5.Ct. 1L1, :s., (..IAL fNl, hold that I
throul:hout the notion during the war mold
Cot.gn.,, null& rsrreise fila war powers to
Iw l-xemiw+d ib Pnrlirnlor ways uud murl udNl,
Ion: In, Is. lonionw'ille root mutroW 1 --yon& the m
• imrr alis, -hut Ihr origrnrirl of it., war ••tool.
I ud ..I In„I Ihn.I, In Ivpe with I...... g ;
oldest July tollntlllrtlnllal doubt] flint Fright
nhn rfaKrtl l'lI I1nNI by Ilrr domllllll lriltlml (if
nlhl•nylnr IIn Vr e.k r,l lin ns. llir pr"IMO' (If
ve le feint nolo IIIc mloction 'If 11(lllning 1'OII-
(1) efulwlwrfnm 1111 lolmollntrlllor III for !rota
retno-twil 'hiring the wnr.
,hot were foir mill jgoll J111•• under nlrllldanh,
1
1020 u,d. wgi PACIFIC REPORTER, 2d SERIES
dated pursuant to this view Indnded at.
templed uses of the police power to fix
mmimurn wages for women (Adkins v.
Children's Hospifid (19-73) 261 U.S. ',13
S.Ct. 394, 67 L.P-d. 79i), to resp "R ,om'
pulsury arbitration of disputes liver wages
and hours in the iood processing, clothing,
fuel and transportation industries (Wolf/
Co. v, lnduslrial (.hurt (1923) 262 U.S.
522, 43 S.Ct. 630, til L.@d. 1103), and to
limit markups on resold theatre tickets
(7'yson .i Brother v. Banton (1927) 27.9
U.S. •i18, 47 S.Ct. 426, 71 L.Hd. 718) and
fees chargeable by employment agencies
(Rihnik 1, ,%JcBride (1928) 277 U.S. 350,
48 SCt. 543, 72 L.Ed. 913). 111 these cases
the court distinguished its rent control de-
cisions ;Is involving "statutes . . . of
a temporary character, to tide over grave
emergencies." (Tyson & Ifrufher v. Bnn-
son, supra, 273 U.S. at p. 437, 47 S.Ct. at p.
•130, accord, Wolff Cu. v. Industrial
Court, supra, 262 U.S. at p. 542, 43 S.Ct.
63U; :I,Ikins v. Children's fluspital, supra,
261 U.S. at pp. 551-552, 43 $.Ct. 394. )
Itul during the thirties this restrictive
view of tht police power was completely
repudiated. Heralding the court's change
,If view was Nebbia v. New York (1934)
291 U.S. 502, 54 S.Ct. 505, 78 I..L'd. 9411,
where the court declared: "(T]here can be
no doubt that upon proper occasion and by
appropriate measures the state may regu-
late a business in any of its aspects, includ-
ing the prices to be charged for the prod-
ucts or commodities it sells. [¶J Sa
far as the requirement of dam process is
concerned, and in the absence of other
constitutional restriction, a state is free to
adopt whatever economic policy may rea-
sonably be deemed to promote public wel-
fare, and to enforce that policy by legisla-
tion adapted to its purpose. The courts
are without authority either to declare
such policy, or, when it is declared by the
24. When the time came lu overrule fyron .r
"both, V. Beaten, supra. 273 P.S. 418, 47
S.Cr. •128, 71 [.Ed. 718, and tho, permit
regulation of theatre ticket broken' prion,
the Snpmne Court merely urrinned the judir-
Iegslalure, In override IL If the haws
pa•sa•d are sec" uu have a rra,onable lela-
lion In a proper lci;i,lative purpose, and
are neither arbitrary nor discriminatory,
the tcynirements of due process aro vtis-
(ird, and judicial determination to that ef-
feel renders a court foncltu officia." (291
ILS. at p. 537, 54 S.O. at P. 516)
A1auy of the prior restrictive dwsiuus
accre expressly overruled. Upholding a
womells miniouun wage statute and over-
ruling Adkins r•. Children's Hospital, supra,
261 U.S. 525, 13 S.Ct, 394, 67 I..Ld. 755,
the court pointed out that tilt Constitution
dues not speak of freedom of contract but
only of liberty subject to due process of
law, "and regulation which is reasonable in
relation to its subject and is adopted in the
interests of the couununity is due process.'
("Vest cowl Ilatrl Co. v. Parrish (1937)
300 U.S. 379, 391, 57 S.Ct. 578, 581, 81 L.
Ed, 703,) 'I,Ilc sweeping nature of the
court's change of views and its direct rela-
tionship to the vailier rent control deci-
sions is perhaps seen most clearly in Olsen
v. Nrbrnska (11)'11) 313 U.S. 236, fit S.O.
862, 83 L.i?d. 1305, where a unanimous
,,net upheld a statute regulating employ-
ment agency fees and not merely overruled
lbbnik v. McBride, supra, 277 U.S. 350, 48
S.Ct.545, 72 lj. . 913, but depicted a
flood of its iule"celing decisions as en-
gulfing and repudiating the philosophy and
approach of the WWII majority." The
repudiated legal standard was described as
one by which "the constitutional validity
of price-fixing legislation, at Icasf in aL-
senee 01 a so.rolled emergency, was de-
pendent on whether or not the business
in question was 'affected with a public in-
terest:" (Fn, omitted; italics added)
(313 U.S. at p. 245, 61 S.Ct. All p.
911e Olsen court thus made clear th-t exis-
tence of "a so-called emergency" is "o
longer a prerequisite to the constitution -
,rill to that ditrt witlmnl apin"a" (Doll
n. D1Carlo (1:165) 383 11.5. 520, Sr S.Ct.'
1332, 14L.Iid2J 288, ufflrmiug U.1:., :
F.Snpp• 817.)
AIRKENYT!J) V. CITY OY BERKELEY f•'.:I. 1021
illy 11};3,!:du,u IL:il1g pa. c, I ...Ile,, In cc."hug mpuumli 'lu. Ihr utun:vd
•.( '. i,e:lar ILe legulatrd anletpa.r I. "af v3al,1iu: "I the arra gemy n• pun l."M lit
pubhr ";cert;." light of I!le l;wted States `upr.mr Court',
hnld.umcillA 'llan;e of appruaah IF, the
N...... it!' 1.,mh ng IL„ I,a,u '1'':tilt
l lilted gent- tinprrtnr 1. mull', a ml 0.,
,61te" powL
er , rel:mr
ale prit n. li r rim!
,d •.coral Anici call int'"dmtloo•. have
nnr,inur,l t" ural IIIc tcist,lwe m( a grlvr
emergency .t, a nm,uwuunal "n•n•rpu. u,
lu ally loan a( Ip,venunrnlal r:'nt urtd rut.
In smnp• instance, the requin•m ent has Lrnl
held to I,r ,ali,fird by a Icg i,latic, derlar.o
tutu of cnicrgenry in Ihr 11-111 rootrul ,t.,t
etc nsclf and the :d,.rnre I: 6.11 ILe rrrurd
m( ,:iy limit tilt Ireatim: t!u• drr!aration
.n unl nm. I.'Iill Slerdrum II., n Illi i.f it, ,
(ilY lien( i- It, -ha b. adm'n (1'1-65)
Y.2d 101 i, 160 N.1'.1,.:!, .! , 21 ii N.I:.LQ
216; l.inruln RLIy, /kine Arte, .. B's ,r
t I' io) I N.1' 2,1 113, 1=.3 N Y.S—'d 6.1 t, Loi
2(I 8111 1"(flee space rent cuotrul); L
purl v. Cily tient 1+ Rehab :Idm'n IS.I ).
::. Y.1908) 311 1•.S I:fill. IN18; Iflurrll r.
Treasurer l+ Necriver (;rneral i i'/ia) .1.11
JLIss, .501, 507, 120 N.E.2d W.) In other
case, the lack of a sufficiently grave emery
genet' has heel Srl forth .t, a reason for
holding rent control legislation invalid.
(Kress, 1)(111L1p 1+ I.anr. 1.61. r, Uouminq
(3d Or. 190)) 286 P.'_d 212 (reversing
summary judtinnenl; id. (IrVlrgm Is.061)
193 !.Supp. 874 (finding sufficient emer-
genr-y :u ill low -rent hmuing but not as to
high -mut hnnsing or cnmmrrrial proper.
ly); CYfy q .lfinmi Reu(h v. 4leeltunml
Ilolrl, supra, 261 Sold 801;13 Warren v
Philadelphia (1956) 387 Pa. 362, 127 A.21I
703.) 2e In none of three rases does the
25. Fillip -1mjorily opining held lhnl till >liumi
]Truth (lily Cm3ucil'n drlrnninnlinn that rent
rmntrnl woe rel Iry "on inflationary
splrnl ail 110113i11g ehorravcei ill tlm rile (nllnl
to _tul,hah Ill, pmrr_pnry mgoin•d hr the
IlPond Will` I rent rmnlml ruse. Olareva
/(1-n v.•n I.'•,. r. Feldman, anpru, 731; I'8. 170.
41 F.r't. .Ki,. 1,.Rd. 5771 1,1-11 l.ruina
.Sitwell anpra, =311 U.S. 71-1, -12 S.('I.
,N), ly; L.I.A. 3p5; I'Iw dlrlun Cupp. r.
Fin,dnv, wjol, 914 ILS. 54:1. 14 S.O. I(fl,
G4 LAA. X11). A dt,.poting Jnai,v Ilan'Kill
liu,t rs'idrurn in Ill.- rerun) ahow,nl Ihr rR-
!eh"u. n( Stu rm,•rp,ley which mit the mnprr
cou•.ulurn.n,tht if price regul.dnm under
the due pl neer" rl'"IS" ('tilt •1-1 dn.enl-
mg min. w iuultrdn m-l/unhulLn, Int, c'.
Clty Keel .- Rrhah, Adm'n, sitprn, 1? N.
1'241 loll. fill.;. 261 N.Y.S.M 23, 2117 N.
11,1 :!In.l
It., limit, Ilial have v"midrn•d tilt i111 -
1,11c 3!,mo•. --f 1111, ch:mgr have cunctuded
lila It lender•. Ilio flamer enu•rl;rney re
goneotc11l uL,vlrt. 1'1111,, the ?rnnnl
,im (,ma of Apical,, tin aff3aning dmwis-
,.d i,l a landi"Id', ar1"n. a!:., •11.1 a rent
rooted rut heed nutlet the (.I'll :,glth Act
1dL 11.}1 V v I')A3) stard Ilt.d "r i:avr
m. 41"1111 than It Ph, lhuh•d "t tt1-, Su.
plvnu 1 ,,1311 1 "mild ,11,1ain till r.diduV of
mut rmulrul 1. day. 'I hr little
when rxaaor,Imamly e,iCrnt I `111"staures
werr required lu ju:•lify parr cnnlrul note
side the mthliunal puLlic uUldy arca,
paused un the day that A'rhhia v. A•eeu
1'mlr, 271 ILS. >p2, i3'I, 5.1 S.l'I. it 15, 78
L.lid, imil, 89 A.L.R. 1167 (1'!.(11, wa., de-
rided. Whether, :is sump hrlirve, rent con-
s(l dor, nut prolong the eery rnndlltmt
that gave it hit'th, is :t policy t,.nr Still ap-
pruprialr tar )wheal concern." (fiiaen V.
F.nslnom (2d Cir. 1960) 421 P.AI 5611, 567.1
Similarly the New ler,ey Supreme Court
in so,laining the validity of nnntiripal rent
cuul3ul ardinamch reccully mb,cr•ad that
"rent control is, of cuoree, hot line example
of the larger and more pervasive phcllome-
non of governmental tell of prico
ilyu Ira, 11111 Ihr nu,junty npfmmn to x01111
nmprrdine enph rvi,lpnr,. (2rl Sold 141 pp.
till, NA. Sit).)
26. Th" d,.....un nunwell 1-,•a til, :ynrnJ
pulpa of n
I-pnaylrnoin law in %wip. "f the
rvori'n tmnmm�rempnt ,•IFFei 1-r Ihnl "Penn-
rvl,mm.. Inte'mitiuin•d rrgldnmry
Iripslnum, pprlm'pe mor, ,im,ly 1101, 11""141
ill,. Sn rlmp Cm,rl of Ihr 1'uilwl SItUi'
(Prn,rnelr111-11 Nolte Ibl uI I'dnrmnry V.
pa+lex (1.'171) -111 )'n. jiq, IM, 27" A.9d 4187,
1911.
i
1101.) (:.if. !1511 1'A011I0 1t31Pl1RTER, 2d SERIES
under the police power. 1•ur cou,titutiun.rl
purposes, n•nt control Is indistinguishable
frau other types of governmental price
regulation:' (Button Park Gardens r.
7'nxrn
Casou (1'175) (A N.J. 54.1, 555, .Ld)
A.24 I, 7.) rlrrurdingly the New Jcrscy
eeurt concluded that the Gaited Stale,
So -court's ab:mdunrncnt of the emer.
gency prerequisite for III ice regulation gen-
,-rally was fully applicable to rent control
Lq;islation. (Id., at pp. 556.561, 350 A.
;it pp. F-10.) The sante cmichrsion was
reached by the Maryland Court of Appeals
in Westchester West IVa. 2 Ltd. Part. V.
Alontyumery County (1975) 276 pfd. •148
(21] Before lire present case California
appellate courts have not Leen called upon
to consider the validity of a rent control
measure, llowrver, the United States Sar
preme Court's previously described en-
largement of its view of the scope of the
police power to regulate prices and its con-
sequent repudiation of any "emergency"
prerequisite for price or rent controls find
their parallels in our own decisions. It is
now settled California law that legislation
regulating prices or otherwise restricting
contractual ,, property rights is within the
police power if its operative provision are
reasonably related u, [lit accomplishment
of a legitimate govenuncotal purpose
(Wilke- & Bal_heiser, hoc.v. Dept. of •4l-
rohulia lien Control tl')(Ks) (5 Cal2d 34),
.;39, 55 CaLRptr. 23. 420 I1.2d 735; Allied
Properties v. Dept. of rIicohOlic llcperagc
Conlrul (1959) 53 Cal2d 1.11, 1.16, 336 I1.2d
737; Wholesale Taborce /balers V. No-
tional etc. Co. (1938) 11 (:al2d 634, 633, 82
11.2d 3) and that the existence of an emer-
gency is not a prerequisite to such legisla-
tion (Jersey Algid Milk Products Co. v.
)crock (1939) 13 Cal.2d 6M. 637-638, 91
11.2d 577; ffrholesalr 1'n6Acco Dealers V.
Nnlional etc. Co., supra, II Cal1d at pp.
(,54-655, 82 P.2d 3)"
(221 Plaintiffs contend that a more
pressing necessity is constitutionally re-
quired for rcyulation of rents than for the
regulation of prices generally because of
the historic preference for real property
exemplified by the legal presumption that
breach of an agreement to transfer real
prnperty cannot be adequately compensated
by money damages (Civ.Codc, 4 -3,1A7;
27. Hoth thrnr dmiaioue rrlill extensively "It
Se66io r. Soo York. 'upon, 261 11.8. FVs,
51 S.M. 5M. 78 LEd. t40, in upholding leg-
islation regulating price, and rr)ectol effort.,
to confine the Nebbia principles to legh lbah n
of n ornporury or emergency nature. Thr
dincueafotin of this point are on follows:
"Amici curiae seek to distinguish the Neb-
Lia case from the inntunt cam. And par-
ticularly call else attention to the fact that the
New fork statute was of It temporary
duration while the C.nlifnmie Act is will"
,tilt tiny limitation u, to duration, but they
fail to show haw this difference in the two
statutes down in tiny why divert the legislature
of lite (rower to protect nn industry (min it
pedlnua con-litinn whieh in permanent In
charoclec Furthermore, the mile appears to
his well manblishnl that,'Vnilare by the Lew
ialntnre to limit the operation of the law to
it definite term I,wm not render the law io-
vhlid xa IonK us she ronditionn which jua dy
the pa nage if the law ream.- People 6p
Van S,huiek v. Title d Mortgage d Cuoran-
ice Co, 21A S.Y. 66, 3bo N.E. 159, 162, 00
A.L.R. 277," (hussy .Void Milk Produc/s
Co. u. Brock, Almost, 19 Col2d of pp. My -
o38, fit Ptd act %, 5587.)
"11 in Alit. xignilinmt that 'Ile vurioua
ranee re11N1 upon by nplwlboR In the Instant
rano were riteil in this dies.nring opinion iA
if., Nebbia ease. The rile of the Nebbia
rose line heen Place (nllowed. Barriers" Form
Products Co. V. Tm Evok, 2117 U.S. 251, W
S,C'r. 4%3, 81 L.Ed. W0. It is tme that
in these coxes the IlniLLsi Sinlm Supreme
Court empbmixad this emergency nature of
it,, Irginlation. Tile emergency referred to
was in fart part of she hnckgrouod of the
htanatw. lA determining judicial Belton.
Imw...r, the chermder of the Almation
nought to be remedied rather thanintent brptt'
wenn In the gowrming factor. As we
the IVAN, axe and the a" final this court
hereafter referral to, in pandina up-' the
validity of such a ftlutm the sole roostitutionnl
yanln8ck by which they should be mrnvin_I
IN the necnaity for And the reasonablsnna of
1be regulation. The gnenrlon RA to whether
Iha stntute involves ahm"t or Indirect ""I
flxing in n false quaolty," (Wholraale
Tobnem Drolers V. National etc. Co., anpra,
11 Cal.2d at pp. MA -655, 82 P.26 tit P.
15,)
iv
IM M1:N1'CLU V. CITY Ul' IIERKELLY Cul. 1023
11.r u.pn.l
I lune
If, n;wn� 1 r. rP.d Ilniil !I I'al \pp. '.I
'.IJI nn'.'+.b�l ,I wee• Illi In ILc nlsrinul of
I Li, IPI l_u, 4,{I',.',I 41::,I, 'I Lr. ,eeol•I.
.,•.;,.,eeltil. .I al u..l I.. '11- 11 clm II11n o,n�
h. n. I v I16k,n11: Ir l it lnuns. Ihr fell I."I.,ll
.Ihlc In (Ictcllub'.i:q: tLr tAldit,V of a I,LI
csa.uplc, ..I i,l •.pn esti rl•. of Ilam• pnhw
:.Lane np•a,ulc mnL l ill" pubic p.,n,•I
putter .r r, I• 'nenun, .n. the u:e ,II Ir.d
••a1 suer c..ac, rn it nail "!or l Iter the ,"ra�
pn,prrq. I'•. c, , I', (r,n rol"biled Ko,k
.u,f n•.nou.eldy ndalr-. b, :, legitimate gg,c
l.or AnYelec
r"eutentl I'll l"i" .,Int Ic lr title" I:ka
119621 77 1 J_! I SIi, "I a l.Upti. 633, 1; 11
toll rte+v Ire.ouaI'l,pr .. m Illi- fuuleet "illi
I'.',131ll deer :•. f6.lu.I til I'I'Mir l arks
wl,dunl," (I Vilkt H,.IJlrurr, Atr, s.
111)2,) 1'I, A, 'l/I, '•.1 P .11{1.) I'I., II I.
f)f j,l. 4 /li('llilldlC l:i"'. Contrllf, :,lepra, 0.1
tells' roolcla..lu n.I . lolly au,wcrrd I:, the
Cal.l-d 349, 359, 55 l:aLUl tr. 23, 311, 420 P.
ru'hl s1 I.f :L.. n•nl r.udrol ,asrs nu "inch
'.I 73S, 7.1(, accord, ( untolidoted Moak
they rerly, •. herr Ibc ...... I r, -ft tied lee ,n, it
f', r,Lo Lr Cu. r. 1:11v I'l Lot 4ngeles, Ito -
It tntlon,s on lilt. n., of rr:d property .,,
p1 a, 57 ( al.2d ;15, •" ',1 CaLNplr. 639,
1...:1.1..... 1,....6, L...,.:.b u.. ..ted UUC.nf11V
ni111'. d.34,' 1
eeL.0 ac•I That It bI .ur.ty:r unc acrd 16r
lug, I.ilure may Ionil hr 1011 t" aus+rrl ;e"'
nlller it ur.Iy Buell rcuL" (Illork r•. MMirsll.
supra, 256 l:.ti. Lis, 1.6, 11 S. Cl. 438, 11; 1.
65 L.Fd. Mo The I Itrt al see slated Ill
lee red riot hnullonls In '•.1 reasonable rent"
"geers bale 1f ;it all (.tither than the rt
,I rlfliull pill Ill" ll tilt- eight-. of III I. ....... I
of lunacy Iry Ihr mw.. dcketable testily
law," (256 U.S. ;,1 p 157, 41 S.O.:,t •.
4101 Moreover, the Virtual equivalent,
under o.m leen vou4ltinu. Lrlwrrn III, VIII
ing u( pn,prrty fur r,:sidrutial porpow:s
and tile purl hale of ,nu,ovwr goods aid
'wr.'it es (sir (. rrvn o..N uperfor (•uu rt, "I.
pr., lee I al..ld 616, Q3, 67.7, 111 CAMpir.
7161, X17 I'?d Iltdi) pnuits to our applying
Ill, •.;one rnnslitntimml slandarda w d¢
teguLnino of inelte that we apply In Inc
regulation of nlhvr condoner prices,
1231 It is suggested that the existence
of a serious public emergency should lee
constitutionally requited far rent controls
because they create uncertainty about re-
turns from capital investment in rental
hmtsing and thereby discourage construe
tion or impruvcment of rental units, exac-
erbate any rental housing shortage, and so
adv,r,Av affucl the community at large.
18. '1'10• Lal ..f Ila• rlmerr nmrn.lnl,..l'x r•r•"
lion I lr tee GJlowx:
"�bm•.n,•m of 1'ngxnn .\ grnwil.x ,hart•
I,,:r of h,..minx uuitte rvxnlltng in n rrilinnly
low rarnnrr cab•, it.elly rieinK m01 . r-
terLitnut rents raploitiuK thin itharinw-, nell
n,o rv,ntinuinK 4•9erinnalou of elle utimling
X241 \1'r Into thco I" the H"ob"o" of
.rhrthrr Ile I. ollpo,iueeu ..f : ty feenn of
les -Tent fans n.l, fla the puriloscs ,tat -
,"I til the pr(svitt ch.,, :,•r .unendm-tet 1,
vndlin d,icnd.un's puhre power in that it
n•z>eena Lly related I., Ill,• accomplishment
.If .til nl,jrclivc feet "lilt h the power call In-
I,;,,
rIntl lung: Lica ,cttlrIi that the
p•rant rxteo.l, to uLjrrlly, in lurther.mce
of the public pearr..afrn. mural,, health
and welfarr mud "I, out a circaunscribad
pn•rol;allvv, lent I, rl a,1,, .I ted, in kerping
"lilt Ili,- gro"lll of Llu,olydge and the he-
hrl til the popular nand u( the need feel its
.Ipplieation, eap:dlr eel cxp.msion to nivel
e.xistinK coodilinns of mudrrrl life." I Vill-
,•r ;. Hnmd q 111hLr Ifr.,,ks, supra, 195
10, 2.51 1'. 381 : accord, bmstilidnied
Milk I'rodufls Co. s•. (lly op Los Angeles,
:.opra, 57 Cal2d 515, :.21-522, 20 Cal.Rptr.
08, 370 11.2d 342.) '1•hr charter amend-
ment includes in its stated purposes for im-
posing rent control the alleviation of the ill
effects of the exploitation of a housing
shortage by the charging of exnrbitanl
rents to the detriment of the public health
:old welfare of the city :m,f particularly its
underprivileged groups. ! § I.) ca The
amendment thus states on Its face the r.xis-
6m„ing xb.•k Ir.o,toilo. It ,•Anti^ pnl.11e
r•u.r rgrn,•y nff.r'11nK dn• In•+ of n
prolwrllun of it,., Ifi•rkrlry rr,idrnln rr•br1 n•.
xi.lr in ri"l"l Tie, •, wm•rgl-lny rule
n.li.un rmbenxrr Ill, Wild". L.•nli. nod wrl6rrr
Ili Il.a I -i try Of I14-r4l•6•1 owl rxprrlxlle, tilt.
brullh nil I,,Ifit ru of III" p, at r, lItinont iex,
I
10211 (',d :ddh PACIriB R11POILTBR, 2d BERIE9
Imre of , unda..... m 11'. . 11) outs, "ho It
residential tent ,,,utiok etre Ira.on:aldy re
Ialyd I., prnmutsnn of the pnlduc health and
welfare and :oe therefore within the police
pooch.
125,Z61 Ilowever, the roasuttoion,alit
of re..identidl heal rnnu„Is under the police
power dependk upon the .tctual existence of
:t housing shortage and its concomitant ill
effects of sufficient senou+nrss to mall,
rent control a rational curative measure,
Although the existence of "constitutional
facts” upon which the validity of an enact
merit depends (see (':(onto v. H,nrd ,J
Medical Examiners (1474) 11 Cal.3d I, 15,
112 Cz.Rilar.;i46, 52(l f'.1d 10) is presumed
in the absence of any showing to the cmt-
trary (/n re Petersen (1958) 51 G4.2d 177,
182, 331 1'?d Li; Hart v. City of lleverly
Hills (1938) 11 Cal.2d 333, 338, 79 P.2d
1080), their nonexistence can properly he
established by proof. W'Amiro v. Buord
of ;Medical Examiners (1970) 6 Cal.App.3d
716, 727, 86 CaLltptr. 235; see United
Stotes v. Curnlene Products Co. (1738) 304
U.S. 133, 152, 58 S.Q. 778, 82 L.L•'d. 1234.)
127J In the present case the trial court
received evidence presented by the parties
from which it made findings concerning
the existence of facts justifying the rent
cohdrul provisions of the charter intend.
merit and concluded that the emergency
ennditiuns that the court deemed consliut-
tionally required for rent control did not
exist. As already stated no such cmergen.
ey was constitutionally required. On this
state of the record our task is to review
the findings (there being no reporter's
transcript) and to sustain the propriety of
rent controls under the police power unless
the findings establish a complete absence
of even a debatable rational basis for the
legislative determination by the Berkeley
electorate that rent control is a reasonable
means of counteracting harms and dangers
to the public health and welfare emanating
from a hrusing shortage. (Hamer v.
nlud.nhv nut the aR!+1. The pnrim,o, of thin
Article, ther.fore, is to allevisto the hard.
ship ennenl by this rmrrpenry by establishing
lee, n „f 16 -ss ( 1916) Yu I ill. -'d 776, iKl.
31 (,al.l(ptr. 335, 382 I'.Cd 375; Lockard v.
(airy of l-ns.Ingele, (00) 33 Card 4;3,
4M--)hi2, 202 11.2d 3,K) In re,irwing the
findings we also look to Ihr trial court',
uumvrrndurn opinion as an did In their in-
terpici.ition. (IVillimnsv. Pnccineli (1463)
230 Cal.App.2d 512, 516, 40 Cal.Rptr. 285;
6 Watkin, CaLI'rocedure (2d ed. 1971) Ap-
peal, 131, p. 4221.)
Far front dispelling any r.ttional basis
for rent control, the findings affirm the
existence of housing prnblrnis that crrrre.
.pond in kind even if not in degree of
gravity with the conditions described it,
section I of the charter amendment (see
6u. 26, ante). A cl:nuc :appearing at the
outset of the findings un the "emergency"
issue states that "whole segments of
Ilerkeley's population suffer from a serious
housing shortage." Additional findings in.
dicating serious rental housing problems in
Berkeley when the charter amendment was
adopted include the following:
L The City of Berkeley "offers a dis-
tinctive and attractive lite style, and a su-
perior school system which, because inte-
grated, is desirable to minorities and to
young people generally, . . . is the
site of the original campus of the Univer-
sity of California and has an established
reputation as it university city . I.
and] is primarily residential in character
with some industrial areas."
2. The vacancy rate for residential
housing was "in excess of 3%" and "such
a vacancy rate is low." According to the
court's memorandum opinion, the vacancy
rate for apartment rental housing was 3.1
percent and "Ib]y any standard the rate is
low."
3. "The population of [Berkeley] . . .
was approximately 116,(M of which ap-
proximately 637, were tenants. Of the
total population, approximately 30,(X%) per-
sons comprise it group which spends in
u I(eat I;onlrnl B,eeJ rtniuwensl to rrgulob-
residential hnneing and nmtnls In the (:try of
Berkeley,"
i
blv1U;NITI,D v IfI'I'Y U}' It(; ICH k:LCY
velrnt tl.." Ill'. !u .. u ; ..ndI It -I nl
}pn„in,.r
•.,I•'l. prn�.. iw- ''..I n•, f... Ibr n,..,i p.111.
u'w,ul' inn, u
I'.r: L,•Iry ..,nl `.1'•. ', .:•�r6rl.•, .1.tl1.Iml,aut-
.i..
Lly pf III lov�. , I In..,.. ,.':. .,fill
Lg'..,.. n. .: I,'.d rA1; air ,n
I.0 lltl Ir v.., II, Iln
hr II l,apl rondlt iul., In, ' I...h g'uup•. mI fie rl:-
6. 'Ihr gl,Inl, .Ir i1; n.: a'.I .'other youtnl
pcuylr" "Ger Ii,c n. to part. col; I" of
non .Intent, who Ihuu.e LI live In Itorkr.-
Iry her:ulse they are avealc,l ill its life
,Iyh'. \Lute of them have marginal in-
comes and the con,jamo of their hou,ing is
p,•nredly unntp., rahlr it, that of the lua-in-
r)f fsrl ling t11c-x hndup:, of ,ensu,
h,•u,inp prnldrnl> .. other findings ul
.om•.I ild atl yr I ,c,lf,,nl. uhirh w, old pn.-
vm!r . Ill rnpn:Iit- ma erial for ;I rg if ing In a
b':,, tr:r I.,,,!.1 111,- iI !I,uld od enact
I. fit cot tr6k lint wlnrh Ito not drsprl the
rn:'.•:I:r'•m 1!'': '.uf LI,.: rational bask for
r•. ...... coal rrn' c(,n!vA !.rovidcd Iry the
!.ar.rr amendment`, tatemell of pnrpule
2d, Inl.,) .,:'A the findings Ill, I-
"I'A :mnmarirr.!. is i.ndmg" of mwvl-
luratne rllndmol, Ire nI three'kinds.
pint :Ire (lobo". of Impruvenlnu It,
I:nming conditions uhirh slate as fnllma's:
.I, , - I I I t I k:y;
;au !•.,pul..11uu .,'I: fife
7.'. At Ihr luny 'd tr
w -n I ,.pr,t 1'.1 In r''v l!,
I.nu r::l.:,n 1'• . !n mull' • Ili ,.I I'• 11,- i •v it,
In .... u1 w101. ii.0:1111,Ily ItAce :v.1.
.r..ulnLl•• inr .Ilnu.,t :dl onlveraily +uuh•, 1,
..ii•, •ei :ulrqu.In• hila Ilal .mI w.:, avails-
.,'. ?. :udrnr, into r+1.dJished :1.:.1 Ihr;:
p.,nr• . , uul.! out .,o;,p„r them; Ylu+ per
'•I :rl.!.li hall 'i .rv:ulahle for le,•
.;..:c 'uta per south ill alliin di,t ride nl
!o�; r.:'.v m 1'G'I r:nq'•"I L•'re r,.❑ :• :md '/:!
plea rnl, :.. .:!.no 1•...... n.I.r r.'I I. in
rn•I.r•I m.,cl IN 6rt.. rrn I':trl :w 1970.
1C`u Ir ..II Iltr„ Lal•• :ire
•II •,..I .,.I.h I •:.nrl the I_4r of r.rtnn;.d dr
L... Irl ,.I-:, •.,, nl ., In,q,lu!' -.L ria ,:
.l l,•1 .,., n;;l!..,..., 91' r'):rr„Ivr IrIJt M'rlrtll'•
•'nblll;h to 11.1-1.utl 1!;r Imp"'li'm ul Irld
n n.I n •I'•
'li.e .•'.oI..I Iatrg, I I y ,d :u uchul'a l 1 v,
lou„•I.. ill nmlp.tri,o 1, helwo It
I:..0 •.ng rnn4lh„rl. nl Ilrrlo-ry ;uul of a,-
Ilnnull•, .ur:r.. I! n luurd that Itrrkrley 1
"part of one• I•.:n.nnoll, lolml area I:cfI
,:t-aphical!y indl,ungml.haLlr from Rich-
Inllu,l ,nl life nor dl t 1 nn 101 Ua6Ll nd om the
,mnh” and that the rultal hnuiing vacaor-v
,;,it- in Loth Richmond :md OAland was 6
perc'e»t as compared to3.1 percent in
Itrrl. lv). Wall rasprrt to file Ise• -income
hnn.p drsig rated as "nlher youn!: Proph•"
ll is (nand that "their 1-1111hty is .":ch a:.
I•, oaf,. II pn:•,ILIe for 1111 ul ,, live in sur
Iumldmt'. I-cimlirely high ea, .1:ry 31e:1..1
On ill,- olhrr l,:n;d the fmulnp; •..oY:ng Ihr
�nkrr.r Lou,Iug pnJl!r;ns Lu ,.d tlx
:q;r,l .nal dls:ddcd gmnp in llerkelry� add.
Ill,u "f}u:u' nm,bnon n not u,.bh that I
Prnrol,:d in n!her melropo11:311 arras:'
1281 \rohlt file acadal.il.lyit. Orle
Iuvv.Im lnue ” adculy "I hnu,i;.. in •olJow.
ny; rriu', nor the fact that the problems of
Ow aged :uul disahled If Iter;:rlry are l;n
v.m •.r IL.to in other fie ltopolitan areas lie -
I
I
M
)O•yh C.II. 550 PACIFIC REPORTrIt. L•d SERIES
trails (rata link, lcy''. power la ••.I u•gu:ud
and trtolnntc the hl,dth .Ind wel Lyre of per
sur, wh,I IllnneC III live in that cltt. lu :I
hold Ili nq;vlatwn Ont ucaq,ivd by g. neral
stale I.uv such :I, ,:ln cenorul each Illy is
fret u, exercise It, polio pnw'cr In deal
with its own Ioral conditions which may
differ finto throe in Other areas. (Ser
6nlrnn i,..luperinr Corot, supra, i(I 1'al:_'d
651, s5.i-8o-i, ih t:al.l:plr. 642, 452 I' -2d
9.3l.I Among Hrrkdey's local condition.,,
according Ina previously quoted tindiug,
are a distinctive hfestyto, sduxd system,
and reputation as a upn•crsity city all of
which attract re.,Idents and offer ., likely
explanation for .r rental housnlg •%3cAIIQ
rate that is Inalkellly lower II1:II1 in :'limn•
ing cities. ll,rkrl,-y Is not (Milt it In imodly
required to Ignon- :illy ill it, housing pniL-
Icros On the gnnsml that they wO11Id not I'm -
Ili if some of it, resideus weer to live
elsewhere.
pinally rbc findings indllating the exis-
trucr of serious Loosing prohlnns are off
set by statements in the findings that such
problems "are not so wide -spread as to
constitute an emergency" and that "no
such emergency as referred In in I section
I of the charter :unendrnent( .1"Lually ex-
isted." We have already held heron that
the existence of such all emergency i, not
a constitutional prerequisite for Ilse hnposi-
tion of rein controls. Plaintiffs contend
however that the declaration in the charter
amendment', preamble of the existence Of
"a serious public emergency" will, respect
to housing problems in Berkeley 0 1, quo)•
ed in fn. 2s, anle) makes the amendment
invalid unless such an emergency actually
existed even though the amendment would
20. tin:tion 1 of it,. -hNrt,r nm,•udment woold
unllnwllionuhly hr ,onniefenl with it," find-
ing, If the following fire wonle shown ns
I,trirken were replecrll by the wording nbuwn
In hulicn: "Sful,•ment of Pnrpnne, ,1 grow -
lite aburluxe of housing onits resulting in it
el'1Fjj.,,"y low va,ncy rate, rapidly n.sing
And exorhilnnt rl•Illa exploiting this nhon.
Age, end the enntinuing deterioration of the
emoting donning Mock conAtitulA It ,moue
10"te l•xu-eKlrwy Folling problem olfrering
the llvl. of n ,nlislnntial proportion "f Ihnne
IR. vaLd in the ah,cncc of such declaration.
1Vlth this cuutentiou plaintiffs challenge
the ole.lsure nal Ly disputing its statement
I,( nulsofnliomlf farts hill fry disputing
slat<•mrnts not necessary to constitution-
ality. Their position is that the city elec-
torate cannot have intended to adopt the
charter amendment unless the preamble's
statement of underlying facts were true
and that such truth can lie determined by a
court. which can [hen declare the measure
invalid if it finds upon sufficient evidence
that the statement is iucurreet.
(29( Gven if it he assumed that legisla-
liun call be invalidated for mistakes in its
prramble concerning facts trot essential to
mush itutionalit y or legislative authority,
the mistakes as+cried here are not grounds
fur iuvandation. They involve ;it most
only dcscriplivr differences in the degree
of serinusnrss of the housing problems
sought to be remedied and any question of
Ihrlr con espuodrnce with the findings
could have born completely eliminated by
only minor changes of wording,'O The
preamble accurately declares the nature of
the conditions to he alleviated and it is to
Ile presumed that the Berkeley electorate
became sufficiently informed from election
campaign arguments for and against the
measure to decide for themselves whether
those conditions gave rise to a "public
emergency" or were simply "serious." The
ballot argument in favor of the charter
amendment contained no representation of
the existence of any emergency. We con-
clude that the "emergency" wording of the
preamble did not prevent the adoption of
rent controls to deal with those conditions
llrrkelry ,esid,•nls who ".lilt in reuhd buns•
Thrar..r.n"iel-1 Muditlonn rm!,Oar
Ihn public bealrh and welfare of the Cil'
of llerk,dey and eslnrielly the hedth end wel-
fare of tin ptx,r, minoritin, aludentn Will
Ihn ug,sl, Tllo hllrrx" , of this Article, Ihere-
fare, is to Rileviaul Ilse hnnlahlp caned by 1it"
4". , w"51 prolilm by eatnblishing o Rent
Conlon, Rnnnl enipowemi w regulaln reti-
dentia) honing. And rentals In the City of
Berkeley."
11
0
1—
r:l
}SIRKf:N 1'11.1) V. l:l'CY U}' 11(;itKEL}:Y 10?7
r'Ib• a •'•'4 R:a Iona
de.chin,l it., the preamble .11111 l .,re xo° natal Ier. I'crn nll`nw ttl b, became operative
,. 'nI :+.:h the Trial roup : (andinlh.
and the :n rust n.nt rribnge sup".cd under
•'f,,"u Stu Wr"nru Oepcicro it. in Charter i
:lmrndrn,•,hf's Pr,risi,nhs l.,r
1'ia iaq If, tinuwl K."ItI
I lacing .u.tained de fend;mts Vower L,
limit IC.identtal rents scilhin tilt. c:ty fill
tilt- lint puace ,t.lted in the charter :uoend-
nv:n, we now consider the unlstln•tumalny
of Ili,mom+ la(wided by the amcndmrut
for fhxiug and adjusung pernlis+ddc Tern,.
\•..'Irrady Natd these "'calls .,Tc wilhin
the polity power if they are reasonably m
latr'Ito silt IcgiAjtivc purpose. "I'rlc,-
m
ntrnl, like any other form of rcl: ulatnnt,
n un"11%1 itutional only if :it hurary, cls
Cromin:dory, lot drmonsl,al,l)• irn•levant m
the ln,hq• the I.cgi+lature is fort. If' adopt.
and hence :n unnecessary wu1 unwarranted
interference with incl sideral libc rty"
f.Vehhia v. Nrrn york, supra. 2'11 U.�. 502,
539, 54 S.Ct. 505, 517, 78 LCd, 94(I; ac-
cord, ferritin !Just" .(red Katt. rasrs
(196.) 390 U.S. 747, 769-7711, Ui S.CI.
1.7A4, 20 I..I>d2d 312.)
1301 TI¢ charter amendent declares
that its rant control provisions are intended
III eu,n eract the ill effects of "rapidly ris-
ing and exorbitant rents expiniting [the
housing] shortage:." (S I.) 'file provT-
6ons :ire within the police power if they
nrL' 'easollably calculated to eliminate ex-
rcasi:•C rents and at the same time provide
landlords with a just and reasonable return
on their property, fiuwever, if It is appar-
ent from the face of the provisions that
their effect will necessarily he to lower
rents more than ceadd reasonably !Ic con•
sidcrcd to he required for the. uteasure's
stated purpose, they' are unconslihltianally
untfseatory, (Federat I'ntvrr Crtmofm v.
Gas Pipeline C,.. (19412) 315 U..,
Si S, SSS -586, a S.Ct. 736, Wt. I_f•:d. II137;
!?agnn !'ark Gardens v. Tnnm Council, sn-
I,ra, 04 N.J. 543, 565-57!, 3511 A2d I, 13-
16)
t c:,o Iul jocasnred :haunt runstilutlmtal
.I,uubrl ds. II l: Irlle that v.11elller a regu-
,tion of pnnm b reasunal'Ic in culdiscato•
y if ...1, ultimately ut the IOLIlt
I cached. (Fedrraf !vomer Camrn'n v. !lope
(fus. (.rt.. (1'/.l4) .120 U.S. ;o1, wit, (t.3
081. Ki IJ -.d. .43.3.) I(nwever, Snell a
ny;Mall„II may he invalid in, in fart when
Its term. will Int permit those w11u admiu-
I Strr it to avoid eollfisc.1t,iry it nita in its
:glpli.'ti in to ill, cnmPlaln(l.g parties.
(('ily of lliou"i Rearh v. P,ntr Towers,
Int., (FLo1771) .105 Su_'d 761, 7G”: 'cc
thea v. llrjinr (Ist Or. 195) ?2•t IL2d
81t) it is In the pwsibilily of such facial
inval.dny that nue pn'+cln uupory n (if-
rectell.
1311 Ueiendant and varvreners enn-
1,'nd that anv present c(mideration of the
po.,ible ran fi>cntory effect u( the charter
As Ill retllforc ehpl:caned the ch.,rte.r
:uurutllnenl establishes the nlaxumml rent
changeable for rich housing unit by fixing
the units bane rent and providing for sub-
scqu,:nt upward or downward adjlutmeuts
on :n unit -by -unit basis. \V, comider first
TI... bas rent is
On, Lase rent provision.
staled to he "the rent in effect tin August
IS, 1'171 err any rent in of felt sld scgnent to
this date 1( it war les:.
If "•III was in
effect nn August
15. 1971. the
b:1 tie Imll Shall be established by the 1Rent
Cunlml l ISoard based on the generally pre.
vailing Icnis for comparable units in the
City of Itcrkeley." (C '1.) Rent control
m
enactents typically Ilse tilt- encharged
har the
nn a prior date :n a starting farm
fining; of maximum rents "n Ihr theory
that it approximates the rent that Nt."Id he
paid in an open market without the upward
pressures that the imposition of rent con.
Uol i. !:"ended to counteract. (See nela-
sare Valley elpp• /louse iryAssn
Supp.
I.
Unarrl Smh•s (li.P.l'a,197-1.
IIr1, afrd, 482 I'd 14fuT; CLn1101 v,
Iron I (Erreel"A.App 1943) 13f. P?d 4rl(1,
191.) '1 he prior date is :et early enmtgh
to avoid incorporating last•minule increav-
ts made by landlords in anticipation of the
runIntl, (Sec Marshall 11 oust.•, Int. v. Rent
102-S CAI. nsn PACIFIC ;tnl'ow nit, 2d SERIES
Cont'.4 flunrd (11m) 35S Alas, (e86, 7111,
260 N.E.'_d 876.)
1321 Sclectiun ul August 15, 1071, .0
the key dale for det cnui nation of hm.c
rent:: Muller the rh.utel :unendment eA,
appngniale and Scasundble. The possiLili-
ty of Itnt controls in Berkeley arnse at
Nast as emly as March 1971 when cmurnls
were recomntcndrd in a minority repot[ of
the city cuuuril's rent:d hnuviug committee.
(tics in. 3, wile.) Ott August 15, 1971, the
President of the United States, acting pur-
suant w the @cnuontic Stabilization Act of
1970 (P.I-. 91-37), 81 Slat. 799), ordered
all rens frozen for 111) days at their high-
est level during the 30 -day Ircriod prior to
August 15, 1971. (F.xec.Or(ler No. 11615,
36 Pcd.Rcg. 1572) Sulnequent rent cun-
lnd; under the act nsrd August 15, 1971,
as the primary ba,e date for calculating
maximum rents. (Ser 6 C.C.R., pt. 301, 37
Prd.Reg. 13226 (Judy 4, 1972).)00 Thus
lite advantages of selecting August 1i,
1971, as the key dale for Lase rca,5 under
the charter amendment were that (1) it
narked the latest time at which rents had
Leen set in an unregulated market and M
the importance of the date under the frd-
cral regulatory scheme greatly increased
the probability that landlords would have
records concerning rents on that date renl-
ily available.
The charter amendment provides that
the rollback of rents to base levels is to
take effect 90 days after election of the
rent control board. (§ 4.) This election
was held on January 23, 1973, but the call-
back was enjoined by preliminary injunc-
tion on April 26, 1973, and enforcement of
the entire charter amendment was thereaf-
ter enjoined by the present judgment an
June 22, 1973. Plaintiffs contend that
marked rises in property taxes, utility
rates, and the costs of goods and services
since 1973 have eliminated any reasonable
grounds which then existed for using Au-
gust 15, 1971, as a rollback date and have
made it highly lo-imlde if not certain that
the present impti'mun of such a rullbacl.
would reduce rents fu cunfiseatorily hnv
levels pending individual upward adju�A-
ments. lotervenn Scilly to this contention
by poutung out that the present litigation
has earned at least a three-year postpone-
ment in the charter amendment's operation
which w:u not contemplated by those who
selected She rollback date. Interveners
propose that we remedy the problem creat -
ml by the postponement by setting a new
rollback date fir by ordering that appropri-
ate relief be provided upon remand. Such
action on our part is unnecessary in view
of our hereinafter explained conclusion
that the charter :nncndment's provisions
for ndjnrtin!f maximum rents are constitu-
tionally insufficient to relieve landlords
front confiscatory rent levels even if the
base rents were keyed to a more current
date. To eliminate any issue of the propri-
rly of using August 15, 1971, as the date
fur fixing base rents under section 4, we
assume far purposes of the remaining dis-
cussion that the date used for this purpose
would he the date this opinion is filed.
133) We turn to the chatter amend-
ment's provisions for adjustment of maxi-
mum rents. Plaintiffs contend that these
provisions fail to provide sufficient stan-
dards for the guidance of the rent control
board in acting upon petitions for increases
ar decreases in maximum rents and there-
by constitute an unlawful delegation of
legislative power. A municipal legislative
body is constitutionally prohibited from
delegating the formulation of legislative
policy but may declare a policy, fix a pri-
mary standard, and authorize executive a.-
administrative
radministrative officers to prescribe subsidi-
ary rules and regulations that implemet.t
the policy and standard and to determine
the application of the policy or standard to
the facts of particular cases. (Kugler v.
Yocum (1968) 69 Cal.2d 371, 375-376, 71
Cal.Rptr. 697, 445 P.2d 303.)
70. 'rite Act expired nn April 30, 1074. (l:conurnle Stablization Act Amendments of 117:1, P.I..
14-28, 4 R, H7 Stnt. 29.)
I
BIRKENFELD v. CITY OF BERKrJXY Cul. 1029
rn,-1,..,1 ttx,r
The shatter am-ndmrro provides that
"[i]n n viewing . . Iwimuns for
(rent] adjusimeuu, rhe ];-,an] shall runsid-
er rdcsaut factors including but not limit
rd in flu- fulb,%swg(:,) increases or de.
creases in properly taxcs; (b) unavoidable
increases or decreases In operating and
maintenance expenses; (c) capital im.
prmvmrnt of the rent -controlled unit, as
disc nguished from ordinary repair, re-
placement and mai ntar:mce; (d) increases
ur decreases in living space, furniture, fur-
nishings or rquipmenl; (c) substantial de.
terioration of the rent -controlled unit other
than as a result of ordinary wear and tear;
and (f) failure on the p:,rt of the landlord
it, provide adequate housing services." (§
5.) It is argued that this IistinY, of factors
does nit adequately inform either flit
Board or a court reviewing the Board's ac
firms just how, the, prescrre of the factory
order patticular circumstances is to be
translated into dollar increases or decreas.
es in rent. Another criticism is the omis-
sion of factors that might have prevented
the base rent from reflecting general mar-
ket renditions such is a seasonal fluctua.
tion in the demand for the kind of housing
involved or the existence of a special rela.
tionship between landlord and tenant re-
sulting in an undercharging of rent. (See
lffffrrest Termer Corp. v. Brawn (Emer.
Ct.App.1943) 137 F.2d 663.)
1.34] However, section 5 provides that
the foregoing factors which it lists are not
exclusive but illustrative of the "relevant
factors" to lie considered by the Board.
Moreover, the Board is given other ugnifi-
cant guidance by the charter amendment's
staternent of purpose in section I. Stan-
dards sufficient for administrative applica.
tion of a statute ran he implied by the stat.
,tory purpose. (In re ,darks (1969) 71
Cal2d 31, 51, 77 CnLRptr. 1, 455 11.2d 441 ;
In r; Pr!ersen, supra, 51 Cal.2d 177, 185-
It6, 331 11.2d 24.) Here the charter
amendment's purpose of counteracting the
ill effects of "rapidly rising and exorbitant
rents exploiting [the housing] shortage" (§
1) implies a standard of fixing maximum
trot level, at a point that pctnuts the land-
I„id to charge a put and reasonable rent
and no more. (Hutton York Gardens v.
I ,ten Council, supra, 68 N.J. 543. 570, 350
\1d I, 16.) Indeed ie,amn 3, subdivision
(g), directs the Board to "is.ue and follow
such rules and regulatim,s, including those
which are contained in this Article, as roil!
/:other the purposes u/ this Artirle."
(Italics supplied.)
[351 "The rule that the statute must
provide a yardstick to define the powers of
fbe executive or administrative officer is
easy to state but rather hard to apply.
Prul,ably the best that can be done is to
state that the yardstick must be as definite
as the exigencies of the particular problem
permit" (Cad..4tote Awe, eo., lhoeau V.
Pownry (1950) 96 C:al.AppJd 876, X12, 216
1'ld 882, 898.1 By stating its purpose and
pn,viding a nonexeluvive dIttstrative list of
relevant factors to be coosiderrd, the char-
ter amendment provides constitutionally
sufficient legislative guidance to the Board
for its determination of petitions for ad.
I. ustments of maximum rent-;.
[36] However, legislative guidance by
way of policy and primary standards is not
enough it the Legislature "fail[s] to estab-
lish an effective mechanism to assure the
proper implementation of its polity deci-
sions." (Kuyler v. Yonun, supra, 69 Cal.
2d 371, 376-377, 71 Cal.Rptr. 687, 690, 445
11.2d 303, 306.) "The need is usually not
for standards but for safeguards. . . .
When statutes delegate power with inade-
quate protection against uufairnese or fa-
voritism, and uthen such prntertion can
easily be provided, the reviewing courts
may well either insist upon such protection
or invalidate the legislation." (Italics sup-
plied.) (I Davis, Administrative Law
Treatise (19511) § 2.15; see Kuyler v. Yor-
ion, supra, 69 Cal.2d at 381.)
137 1(ere the charter amendment dras-
tically and unnecessarily restricts the rent
control board's power to adjust rents,
thereby making inevitable the arbitrary im-
position of unreasonably low rent ceilings.
Iwo Cal. bhn PACIVIC 1tL'I`MVrBB, tad SEltil lf3
II I aleal :h.d lI IIIc lj,w rent for .dl wu
lr,dbvl nult" tern: 10 1'ewapn a'. ill" luasi.
nnuo rent rm an indefinite prowl many lir
most rent I edmgs would be lir become run•
fiscllury. Fur >In:h relit ceilings of Iatr(i-
uite duraliou :m %,ijusln,eut mechanism is
eon,tilutiunally necessary lu prrn•ide for
changes in circumstances and also provide
for the prevrously mcnl"""d •Ltmdi"n1 in
which the base ,.,It cannot rra,onably be
dc(,med to refic,n general market rundi•
tiotss. The mechanism is sufficient for the
required purpose only if it is c:q,able of
providing adj list nrots iu ulaxilmun rents
without a silbsta,tially I:rcatr.r incidence
and degree of delay th:til is practically neo
essary. "Property may he as effectively
take,, by Inug.continocd and unreasnuable
delay in putting :u, cod to cunfiswtory
rates as fly au express affirmance of them
(Smith V. IlAnuf.r I7. (I Tal.
Co. (1926) 270 U.S. 587, 591, •f6 ti Cl. •fQB,
410. 70 f..Ed. 747 (enjoining enforcement
of telephone rates because of unreasnonble
delay in acting upnn application for rate
increase).) Thr charter amendment is
constitutionally deficient ill that it with-
holds powers by which the rent control
board could adjust maximum rents without
unn•asonabfe delays and instead requires
lite Board to follow an adjustment prnce-
dure which would make such delays inevi-
table.
31. A Oo•IinK vlalra Ihut "I Lyre raivnvl a
vncaney rate in r.raen of :I;� Uact and unm-
hrr of va(,nnrie. npproxim Nling ilsl rrnlul
units)" unit lalmlter (inking elnlea Ill, rncmn•
ey rate "inrn•usri fmm 2.1171 to :.I;"o hr-
meen lbil and 1!112." The In"Alerltndlllo
opinion %blue it, ut "the upurtmrnt mond
unit vnenney rnte roe front 2.6 Of 1971 In
3.1 in 1973, (In actual numhen, nu inrrense
from dpi? In 5a13" The indirnuvl ,,umber of
,,nils is dclerminal by dividing Ihr vnrnncy
rote into Ihr number of vorenpips.
77. Ueh•n,l:wl wl,u•n,ls Ihnt "mnhinK in It"!
luw',n Vnrr,hlrw pn+vrntn rnunidrrntion by
Ihu• Ifnsrd or a poltiun for rental mbustmeut
Ilrt. it we,Vnniol by a building rrrtifl-
ration" :,Id Ihn, "Ihr I:nnrl may moulder
a prulhnl whirl, in arronu,eoi„1 Ill as Ade.
quole osrnan fur Ihn failtun to -11,111Y It
building errtihrnl ion—nurh nv delay LY Illi•.
City 11,1111111,19 and Inayrelinp tirrvl, ra” lint
1381 '1 he I'luvi.mni of the "hal ler
:unrudmct,, til v. blob those delay+ iaher.
nmst bc• rx.uumvd in relation to the magni-
tude of the job to be done. The amended
complaint :dlrg"s I11a1 Berkeley has some
30,0(uI rental units of which 22,0011 are sub-
ject to rent runt rol under life charter
:amendment. Although this allegation i3
denied for lack of sufficient information
lir belief and the findings to not directly
resolve the issue, they do stale that the
city's population is 116,000 of whom 63
percent, lir 73;1.411, are tenants. 'file (ind-
lugs also indicate that the city has at least
16,000 rental units, anti the trial court's
memorandum opinion indicates there are
over 17;P) apartment rental unity sl
Tlm Boarl h:Is no power to adjust rent
celliugs uu anv line of these. thousands of
units until it has received a separate pcli-
tion for that unit :and considered the peti-
tion at an adjustment hearing. (§ 5, Ist.
par.; § 6, subd. (a): sec fn, 7, all A
landlord may nut file a petition without si-
multaneously filing a certificate from the
city building inspection service that the
premises comply with state and city codes
Lased upon ;u, inspection made within the
preceding six momhs. (§ 5, 3d par.)ae Con-
solidation of petitions for hearing is per-
mitted only if they relate to units in the
same building and then only with the writ -
,b.• rlmrter til...... •nI (q h) Elul" uueluitrr
(idly Ihut "Inlay Inndlnrl who {wlftions Ihr
Ituml for nu upward rent mdfuetment -hell
file with sorb petition n ttrtifienlion
Ihnt the prrini+er in question fire to fill, nuJ
rnulplrle rn
onlpliarr with the applie
(eodrvl .. (Italia nupplitvl.) Alp
rsowrr of Il Innrd to ,,oke finding$ tuu-
Mry to the cert ificote find uevertheles+l grant
A rent iner•nvr done not affect the nolo
,,pill Ihn, I,-,. "rlifireta he filed.
Plaintiffs runten.1 Ibnt the charter amend-
,,lent would ,b•uy them due prop" by lolling
to provide Imullnnls with any remnly ngninnt
nrhitruy r•(u.al of Ilm rMulml eerti(hr tion
lir wuensunnl,br driny in it' iseuan"' 1u1 L•
inx in the charter ameudment Inhibit, drb•nd-
,urt'd (,fly eannril, lfnnrl or other orgonn Irmo
urcrrininti Ilu•ir lrsptt•tivc pawn% til par v,mt
lir fidlevinte nurh rernesls or -way, and Ihrrr,
rare we, runnel 111x11,,e that tiny such d,•nml
ur ,Illi prro:t•fn would occur.
14I1!]{i:N1'1:1-II V. (Wry O}' Ii I:1l1SEl.L'Y
1031
.,;1 , Lc,•.
1
Dant L' ''.�pp�ltul Ly Ihr ,puml, :nr.ic I
til Ilse rcldrr u:e ';iiawlL•f .i. .nI:ra uul;
'Ihr milli, heal mg tri
nil null include '-.III n.L dol ., pap,l. and
doctlme'Is Ivptur r,l lu L• pled nI a' :ptnl
mlo evidc ncc dunug clic pr ncr,.'hlig, n li,l
n( pa rt irip:mis yl rarnt, ;I sunvnaly
I,ra'rrdm{, :1
ItsUnnnny accepted rn the
,t:ncnrtnt of .,If nl.dcriah ,it 1, rdly nm
need; ❑It finding, of fact: the Iniing on
'rlth ceccptiun or uLjection, of .m,v an.
,enud, all rceummcudrd deel+n"I" ar
p:
;kr- or mill. I all final dra,ums and/or
Dolce,; and the """it' for rich rccom-
nlendell and cath inial dro,nm, �rtdrr nr
ruling:' (ali.subd.(QJ
\lureover, the Hoard i, pleciudcd from
&Irgating Ilia holding of hearings In a
,taff person or even to one nr a I"nel of
its olvinbrrs. No adjustment can Le gr;uti
ed .,until after Ili, l)onrrl cu.....pe-
lition of nn mlf"rl,olxl' hl) lin`(li ihrtafrvr
supplied.) (i y solid. (a)I
mrmhrrs of the lhoild (C
three c... e Itute a quorum And "(tjhrer of
firman ive vote., arc rrlpliral fur a derision,
including .III Ino,ions,urd,rs,. and
rulings
Yet tilt Hoard" (3 '
"'rIt meml,ers r •,t , rnn!,rm;dcd .n
full -lime officials. Fach me:nbar is Io be
paid $;D per meeting Lot is limited to ;1
wsimom annual compensnuon of $2;31111.
n
♦, tg 3, subd. (k).)
These provisions pun Ihr if, in a pro-
' cedural strait jacket. It cannot order gen-
I I I,J i
'I n nl:d rue, La.r,l ou ;;rm Ld:, :grphel
uo rots t.�,t+.'O It
Ya OI"II Icl'. p. nugrula OYCI IuIIY
nqy. II rano„1 •auvLV i a laud61'.i'. prit
uuu Ilial r' lo't atrontpau:,,l Ly a .un*nl
Lnddun; w •pr, nml .rrtllliatc of ' •.•I' corn-
ph:wrc. II cannot di>pcn,t wnh full-
phallic.
Lral gun v,ch adjushorllt petlltun
even 11... l all n,'lgxtationing J."rhe, are
given :unldt• nun¢ and lune to L
rrrinrsts r
heard. It rannut accept peUuoue 1) in.
log W umme Ihau one lull ur Ill, olidate
petitions pert:ruing to indn•id;;;,! ":'Its for
hearing rsrn uu the absence of ohjeclwn
e>-crpl o'hen lilt majority of the letcutts In
a bwlding give written ionscnl la consoli-
de;iou of the petition, ndauui, w 11131.
Luildmg �'' It cumut delegate the holding
of hr.,ring: Ion hearing officer IT a utem-
Irr.r of lhr I:uard, In ,burl• it I, denied the
m:wagraLlc
nsr;lns al :edunl:{ its ju'., t'1
prop'.. uuu, through the formulation and
n pplir,dinn of general Iules, the appropri-
atr dclrganon of :rtponsibihty, .nal the fa-
cusiul! of tilt ;rdjudiralivc prow-, upon 15'
Mie, which caunul fairly he rr"Ilved in any
other 'a'ay.
'lin• Impracticability of Irl;ulattng an
enormous mother of highly vanrd transac-
tinm; whr,lly un a case.Ly-rr-c le -this has
f".queutly ted In regulation Ir; melte of
rllll•d and schedules derived Irmo evidence
typical of the mernLers of lite regulated
group, subject to the right of ;ray member
to make a showing of stiff” "';It dal Itreab
from the norm to warrant rp'c
33. 1'•f..mlo,t arca'-r dmt "'L�•r" wiun, Ire-
xml
,. npliuu re',lor nnl,nllJr'llog 1piulnr xnbri l -d,
hr.n rinN Ilet tolun-r I'll 1 Ibe "L Ill"pt
Or order m rnnkr 1101toll a'hunonry N n, I
io Iliry rnnry of tui it inrr r.6dtto cru
trell nulla .n Ili. •.umry Lruldiu nj 'if'innuwriwrit
r+
L.0 In"r.•ot of n may.rir;
r,., pri r'. I" Nee. dlru Krrr. Th. u,j.urrvinrvnl tit
u ril4u roueeul for rno.ul lin l tun of petilfmu
p,r ludic in Ili. rvnm. ImilAinK (Vote rr a IIIIIWY
•d prohilnnt'Y. Ili•• l Inrau ru1RbIIIIx11OK
,.inlet. Out un. Ie.„ -1]1"' l ie Ibxt Iln•y
p.r blln In xrinlnlu' LuiblulKe.
3C S -tr uwlt,klnu Igl. 'Inert, Ila'
Iluupl lu "Ivepn anal Inllmv tacit rnlrvn unit
n'I;nl.inne.r nr o'll inrr her Ihx
purpn•r„'1 Ilii. .\rlirlrv.” Ind '''v!I ruh•r ronLl
nil nn.IeInul Ili+.vpn^, Ihot "Into
n'ol :A1.1111, III nlojj r'ndrv11 h1 x1f f IILe Ievldwnr
portrd by Ihr P I ,1111. INf 1•
nu'nnlnwl to Ihr I;rnrinN' 11 1i,
35. Ahh„u¢h I.1'xlllr of .r toll h ... ..... III
1 11, oroil” for ro
o il.h"r ring In lrvnr
eo ond.nr loo111 a mourn Ler : e
,nlidxhoo of their own prlill"nr for anon dr'
cern r,.,, tln•v soul, nrlouorill I.
litlln (or
It
.16niK lu Kniu from rivninK I ru lr.nl W
m
runr•'L,Innou drvrIKnrvd m rube• om rnisn
It 'mrl,•r for
tlo• to ndlord "r ebolin pl'rm""'w
Ihrvir n•Irlr.
..4
10;1$ CTil, h60 1'ACIF'IC REPORTER, Sd BELLIES
m to d, Uro of Ibc import au. IC.1" ll•. 111.11
hearing, on the h lrt untttnnces of rac11 Imli.
vidlal,!. s.Ilwdion ale Nut canl,tI lilt ion,d iy
required for the impusiliun of regulation in
such cases i, that sneh individual treatment
would he impracticable. (Prnninn Bolton
Arun Ra to. Cater, supra, 390 11.5. 7.17,
75G-759, 761-770, ,tY S.Ct. 1344, 20 LA'
312; Chicago & .Y.W.R. Co. v. Alchuon,
7'. ,5 .S•. F. Ry. Co. (1967) 397 U.S. 326,
340-313, 87 S.CI. 1585, 19 I..lid.2d M5;
A4m kngl.lml O'.w"ns C•45r (1923) 261
U.S. 184, 19a-199, 43 S.(1. 270, 67 LF'JI.
605; INrlson v. Itrourn (191.1) (Eincr.0.
App.1b13) 131 PSI 319, 352-354; A al-
gnrnn6•d ileal Culbert v. C•annally MAW.
I;.
1971) 337 P.5upp. 737, 758.) In the
prrwnt case the lmp0.61111,; of rent ceilings
it, lite iurtn of a rollha,l, to base rents is
virtually automodtc. Thereafter, regardlc,n
of how inequitable any rent ceiling may be
under all the circumstances, it eanout be
adjusted except by a procedure that inher-
36. Iulrnvtu ni Iwenlnle that u Inndlurd'x ale
plirntinu for an upward rent ndjuntmrnt un.
der the ,•hnner amendment n•onll hr ..reel
upon it, two lie tilt" umnthe, villus, a Moly
which ,blit., Ilett ander she al x..xrhuneb
real hontml law (]Inaa.Acta 111111, rh. 81'1)
"Idle, av0rage length of than, between filing
it pelilion shad rev,ivinK a det-kinn front the
Hear Control Ilo.ni rnnKra from four to five
weeks In Somerville in 10 to 12 week, in
Brookline." lien lien hlnuxrhue0lh armors,
giv" Iwsil Irnt routrul Iw,nnl. lite very losw-
ern w'Idrh we. have desndMd nw le-ibg wilh-
h0d from she Hrrbley Board by the ehsrler
nmrndment.
luten'enen alxo aI nth to nue of ihnr
hrirfx a b-Oarntion of the loamon win, irrei
Inv Ila Berkeley (tent Conimd Ilrwnl'i rhief
eremlive officer prior to the judgment bellow,
denrrihing the Ilnanl's Iden. file dealing
with prtilions for rent udju.rment,. We
cuamider the derluradon not use evidence lit
silly fnrlr or meurrrntnz hat for uhxtever
light it uwy 411.41 un tlrt kibdn of ndj,lelment
pmmdar,r that might be to enbbe rimier she
rimrlrr :unendment. The nl•rin to lint, xbuex
in part: lel "The penal never mmlleLl
netinn on h60ernlining Ill" exact pnmxhtrex
m 1 lotto eel in dialing with npplrn limn
for real jolinhrmrme. However, all of Ila
pnamehln LriuK musidrrel involved the d,e
veloltm•nt of r•Imulnrdixnl formable nid pru.
velar" for determining the upprove,J rent an
rally mal unnecevarily preclude, reasona-
bly prnmpt bdiou cxcrpt perhaps for a
lucky fcw.
Defendant and interveners argue fled
.sly concern over whether maximum rents
will Ile adjusted with a constitutional mini-
mum of promptitude is speculative and pre-
olature because it must be presumed that
the Iloard will Tint deliberately deprive
landlords of their constitutional rights.
They refer its to Uuftemorth V. Boyd
(1939) 12 CAM 140, 1.19, 82 R2d 434, 439,
where we said: "it is to be presumed that
tilt- board will exercise its powers in torr
formity with the requirements of the Con-
stitution; and if it lines act unfairly, the
fault Iles with the bnard and not the slal-
ule." (Italics : tjpplled.) The delays in
tent ad)usimun with which we are con-
cer icd stem not from any anticipated dere-
liction of duty un the part of the rent con -
trill board tint from defects in the charter
amendment itnelf.nn
any given rental ,I'll. The Board'" Bu%d
wax In deedop it tarantula that would allow
it to ralcutalr the rent It would approve on .1
given I.nIInIOK unit pimply by Inking into Tic•
,oam data that wmdd be provided yearly
involving the owner's, cents and equity invest.
mens ht the building bring rnaeiderell. To the
figute thus rnlrnbued, an adjumbnrnt would
be made depending ulan whether Idle building
wan 'ovrrnge; 'udwwe uvernge; or 'below
average,' In in enndition and maintenance.
Rvidenco no to condition and maintsnnmx
would Im provided by lm owner and losable
Ihem0eivim no -well ON itwntigato n working
for the Ronal. The goal Of theme prawlarrn
was In 1. mainlandixe,l and virtually uula-
matic deislunw in rosea, with the Ballot net-
IinK I.dielee lb hr administered by ilx bd(.
vThehx Ialldrewould, hotnf 1ly, rt
oi
ire ra-
tested hearten and allow derision, in she
overwhelmingly tent mxjunty nI rxeux 1-. 1,e
worked out Infnnaully by Inten•xtrd parties
and the Raised xluff. Where deciminm could
ant be worked out informally, henrinK would
be held by Rourd henri-g officen with final
devinbnn to be umde by the Ruled. With
Ihenm provenlurem. we uudripnted that any
given rent adjunnnenl requemt mull be lane
dlr,l ,all claxel within ::0 to 4.5 days."
7'bn difflrudry With 111000 planet IN that they
were b0ynnd til" Ilnnnl'x pownn under s,n4snt,
G. Ilett mljuwsruent d.rhlnus ronld nm le
w•orkel out Informally bitterns the parties,
I
111RKKNFELD V. O1TY OF 1fERKELEY t'Id. J03.'i
1 ,tr,,.:,-:, PA 11.11
139] A dtiferent would he .Sroh„ard Ivnanfe (.o. (1'11'1) 33 Cal.2d
p;rr.rnted if Its.• delays inherent in the Strl, 5141-582, 203 V. -Id 756.)
cbn ter amemhncui a 1equirtmeut that The judgment is affirmed
II esu the hails of
.NI,f„O\111, 'I'OBRINER, MUSK, SUL-
Ll \' \ �, CLARK and ICICI L\ItUSON, JJ-.
til•• Vtnards posses too concur.
w :unchurate the delays sufficiently r11'f'L•NUI\
reserving the rights of all con
-
,cots Lr ad j Isle Ill y .
uun,I�y.flut brartngs Incl- r, ., single tribu•
,,.it were "WrItial to its purpose. Clearly
W be broadened so
nut p
caned. Nor du we preclude the possibility
If other legislative sululillob to tilt prob-
Icut. Ilut under the charter amendment as
it now stands the combination of the rull-
back III base. rents amt the inexcusably
❑unbenmor. rent adjustment procedure is
not tcasonably related to lite amendment's
ss,; ed pu rin,w of pttvnnling excessive
rents and so would deprive the vlainliff
Luldbcd, of dill- process of law if permfl-
led tI take effect.
hmally there appear, no w.ty if severing
the nnnhd limitations nn the Build's pow-
ers to adjust maximum rents from the re-
mainder of the ehartcr :r.neadmrtd. The
cnnstihnional defect cannot be cured sim-
ply by excision but only by additional pro-
visions that arc beyond our power to pro-
vide. lUillon v. ,lfumcipul Count (1971) 4
CaUtl 860, 871, 94 Cal.Rptr. 777, 484 P.
915,) Moreover, the argument in support
of the charter amendment distributed to
the electors who voted on its adoption as-
sured them that the measure "establishes
:est elected five member Rent Control
lluard to regulate rents . . and
r.viclions it, Berkclry on a case by rase I'll -
,,I,, . . . (T]hc plan proposed here
is rsuenlely flexible sic], with each cast
handled individually by the Board." Thus
It is by in means clear that the viecmrale
,.uudd have approved the measure if the
1loard had been given broader rental ad-
ju.tmrnt powers. (See Methoditl Hap. of
.Sacramento v. Saylor (1971) 5 Cal.3d 685,
695, 97 CaLRplr. I, 4F41 P.2d 161; Carter v.
irl tiv Con rel stmt 1,111 ill Ill ru.,•e wuu ld
Lave• u, Le Lna.11 no it,, 4rrlwnd.rnore or der
•vi�L err x iboutt-1 al a benrint( cot n Vnrllcu-
Inr n•und unft, dew-ume, tM by 11 del nlbrl
ssu r cn—esm
AMENDMENT TO Ii@ItKj i.EY CFry
CIS:\RTER
f ,iat>,.1972 (Reg.Scss.) res. tit. 9b, if. 3.172)
'I'llm the first sentence of Sectital 8 of
,\tittle V of the Charter of the City of
I lerkdey be amended and a new Article
S\ell, consisting, If lssclvr (12) actions.
ht ."Weal to the Charter of the City of
1lerkelev 1,t r,-ad:u follows.
til-rnun A. Add the fullowing new Arti-
i, XVII
I. Statement of Purpose. A growing
shord,ge ill housing units resulting in a
morally low vacancy rate, rapidly rising
awl cxorhtant rents exploiting this short-
age, anti the continuing deterioration of
tilt existing housing stuck constitute a seri-
ous public emergency affecting the lives of
I substantial proportion of those !Berkeley
residents who reside ill rental housing.
These emergency conditions endanger the
public health and welfare of the City of
Berkeley and especially the health and wel-
fare of the poor, minorities, students and
Ill, aged. The purpose of this Article,
therefore, is to alleviate Ilse hardship
rallsed Ly this emergency by establishing :r
hent Control Board empowered to regulate
r,•sidrntial housing and rentals in the City
of Berkeley.
Ilelmitum,: The fnllnwing words or
pht',Isc, al- used ort this Charter Amend•
m,•nt +hall have the following meanings:
a) Board: 'rhe Rent Control Board es-
tablished by Section 3 of this amendment.
Ina aux n•rvrnl. ?lon•n,•r, Ir•nriux. mold nal
I r• hAd by %enring offieerv" Inn only by tlu
Itnanl itxelf.
103.1 I'd S:al PACIFIC ILYlr11XNAt, :!d :iNUES
Irl I •mlm, r11 .. 11,11„u..;uon'. „I
Ibc Ir• ,,: A 111111 of 111 r., ill t,I.,LII,II r11 Ls' :nr
13e1.! of Iii,:,:nrI.1,:I, W
,') (, nllrullcd rill,.,! w,,:.. All rcul..1
nun, III the I Ity If Crrkrlry cxcapr:
(I1 rental units nu hill, I,, uotds, nuns,
tourist hump, :,till r .... ,Ig :nut hn.lrding
huu,rs which are rental prio:ully to 11.111.
sivnl gird, fur .I prrinll 1.l lis-. than film'
teal (bl) day,;
0 rtiOl wills n, 1...o -plain rnupern
tivrt;
(.I) rental ona, u:.Iny bn.plod, ,unveil,
un,nastay, ectt•oded Inedhr.11 tare facility,
asylum, nota profit home fill the aged, ill
dotmitory mvned ruul uprralyd by :m iu,ti
lutiuIL of higher „bn nliuu;
111) rvulal units whlrh a I;nv rnwncutal
will, :ytetmy err ;ewiw,ril ,whit•, uwan, op -
Miles, nlauagc,, lit suhsidir,•.
d) 1lousin•., •.r rvir-s: Ilnnsinj! services
include hot :Ire ILIA Iitmo•d to I, pairs, II--
phucenwrit, maintemnle, painling, provid-
ing light, heat, hot and cold t% at, r, rlrvatrr
service, window shades :11srre,•tr,, star
age, kitchen, hath and l111aundry facilities
and privileges, janitor servires, reflrsc re-
mat^l, furnishings, telephone, and any oth-
er benefit, privilege 1.r facility connected
with the use or occupancy of illy rental
:mil. Services to a rental unit shall in.
clude a proportior:de part of services pr(,•
riled to common facilities If the building
in which the rental unit is contained.
c) I.awllord: Au ,r•.vn•-r, leswr, subles.
sur Or any Other person entitled to receive
rent for the use and occupancy of any
rental unit, or in agent or successor (if any
of the foregoing.
f) Rent: The cun,ideratiun; including
any bonus, benefits err gratuity demanded
or received for or in ronnection with the
ww: or orcupam•y r,f rcmal unit.: or Ihr
tr:elsfer of a lease fur such rental units,
including but not limited to Loonies de
mmokld or paid fur parking, pets, furni-
ture, subletting :wet •.••aunty deposits for
damages and cleaning.
;,I I(enl.,l Ir.rl 111); .p;, I, item. At,
.�-I, Ittu ill, v, 11.11. Irl lit :1 In unpled, h,:
I.Ir r 11 a I:urdhad and Icll.ull Inr use 1.r ve-
n•p.,ney of ., I,m:d null :111.1 for Ilou,iog
;rain,,
h) Itcntal unit,: Any huil4mg, struc-
liirv, Ir part thrreoi, ur laud appurtenant
Owtuto. or ..y other rt -.d property rented
1.r Iffered for Lint bar living or dwelling
JIM poses, including hou,es, apartments,
Ir,lming 1.r hoarding hnnse mrits, and other
11ropertle4 used for living or dwelling pmr-
pu•.ct, tugcthrr with all housing services
mnnvcted with the list or occupancy of
•onrh property.
1)'fenllt: A larant, ;uLI•:nant, Irsac•c,
snhlrssve or ;toy nth❑ prrsou entitled un -
dor the toms of a rerr:A lousing agree -
nil -tit to Ihr 1.x or ocrupatcy of any rental
Ilnil.
3. Rent (.,mtrrd Itu:nd:
:I) Cumpo,ilion: There shall be in the
lily of Itch Lrlr)• a F2rnt Control Board.
'rho Iluard sh;d1 runsi'l of five elected
C I oinissionrr,. The Ibcud shall elect an.
mildly ;is charncnmml or chairman one of
ON members 11. serve in that capacity.
II) Eligibility: Ite,idenl, of the City of
141'kCley who arc duly qualified electors of
the. City of Berkeley are eligible to serve
as Commissioners of the Hent Control
Board.
c) Full disclosure of holdings: Candi-
dates for the position of Kent Control
Hoard Commissioner, in addition to fulfill-
inl( the regoiremr•nts of Arlicle III, Sec.
11 -al hV2, when filing romin.rtion papers,
shall submit a verified statement listing all
of their interests and dealing; in real pron-
vrty, including but not limited to its owner-
ship, sale or management, and investment
Ill and association with partnerships, carpo•
ratiuns, joint ventures and syndicates en.
gager) in its ownership, sale or manage -
metal during the previous three (3) years.
d) Method of election: Commissioners
shall he elected at general municipal clee-
tions in the same manner as set forth in
Article Ill, except that the first Commis-
Ills, urry fit ;tl:ltlil:IXY
is ,I
j, ur,, lel:11, I
rpt Iita1 f tIle fir A if v'
WO" f;Incc IV 1:11
I Is, I -illm, !. , -.1%
VIA, ''first 11" i''
will nu, n. '11111, 111,- N" -Is
ma;wirv, 0sr"'.
,;;n. "Ill, r
willos'll.;'I 'it,01-Al
.... ......
fine yr:n ;,Iter 0,vir cle,
fell
I itv
11141+r
rl
itIT the ;,11111
C"Illpl,'I w"I', 'wl fill[,
260, t, rd is I- feld I1 v T to roll finder
n lit
S(.Cti..ti 460- It,aril to
ad ju-I ... no n-111, ill"' upward fir
dutrtnvard after cuti-Ilictill" Appr"I'l iale im
vestigatiml, and hearings a, IfFlIvitIC(I un-
der 111",ird may Nudi
der G. Ict "ll If
,1'' , I 1,1 .11111 17, t,t ixal I'm z. l".111
1,--arings. oIll 'I"t"n ""'I" information .1, &1
. " :,fill Ill'
is, :,Try out its powers
The liciard may II-elo i pl,11-tive relit(
V., :,r the provisions ,I ertinn II in 4irflri
t,carry oat its 11MIUMS :, n:lmay "ClIle
r1mm 1 11 svrth
prmi-
;vct:,,n
;:i ihdrs :,fid r%-;:u'at 11
Cnavol itoard shall i"Ile and full" such
and regulation,, l,,IO,IIt!g thifIv
,11ich ;it,, I'mit-linell ITT this Articic, 31 Will
iartl:rr ill, I,,rpr,,,s rd 'his Article. '['he
h:LIi lill)"Sh it: "ll"S '&11(1 1 iregilia
pi-mr to promillgal 11,11 in M Ira It ()lit
with g,neral cirruhtion in the
All Tile, :,,I r•
'n.'rn"rond. rill %Iril-
nr It. I! Y ;Aa, '-.fig I I %inn ,
... holes he lt",vl '.hall Lr kept It-
,ff;ce ;,,III IT ill be available In
cal 1035
I . , I, , I IT,
it
I 1wi r I
1, r tent ruinri
Is) to .1 110111
Isro
IW "Ilctl upon the re.
queJ ,I
All
'mA III: I'lic, or life IMI.!ic. NI it V -
still, Lear1, W ",11,qui, lit :11111 VvlC
011.11, ,or I,,
with
11111.1 lilt
J still. 'III-" lit" 'PITT, ttt%,c
vlov.l is.' 0 .. .....
Indmg
illIjill
.,fill her is Ill I;t ''filer nut ad p,,pl,rfit t .,I II I
.1, v I N. sa i of
jC 11. IT, ret I I fic.tiv Ill a ring I,, plan Of
duck .1 1,L11 If, Ili, time,
Iw,,tlTI,, partly, Insulved, ill,
nddrr..rs of
;,lilt the Inial di Npu•
'TV;"" Iq rill.
"'.1114111 1 lach
I, 1 1% 1. fur ...... I)' 11101"it "'13
dul-
lal, liotl). III ,, n"
rural sb:dl any
receive in any 1vvtle I month
periud m..r, ill,,B 11"lly-l"ll"
dollars for ivrvim rand,-ri,,
O V,t ancle- If I Vacancy IIIII, occur
liall:,ppoinl I
rItt.,111jell per,nn If) fill such I , v Tin.
lit [lit. [,lImv,ng g,ner;Il all""' ;01 c!vi
when , I�Mllilc,i per'011 shallf�,F' he remainder of the term.
Nervy
i:,,c:tjj it IY I., Ic
111 ;,cc4,r,!ance with Ow ff6vili"T"' of
IT,* of the (11;,rier of the ( fly Of
t.lif It"affi shall cmpI,.V, III, -
Ill 141 tile approval of rill' ':"" (*')"'TV il,
101,11 AAff I,, may Ill, urccs,ary 11 pl-rfirrin
ip;j(j (':d 6511 PAf11f'IC REPORTER, Yd SERIES
AI'PI l)lh 1'"1111,1,01
m. Iron n, nl .. It•.. nl r.,il sh:fll root �
nulgrrl Ir, the nynrn•utr oP• of Article 1111
C,eli,n :Sill and lel :uud All ielr IN, tir•.
turn S.i rd Ihr t Lv' h.trler.
d. l.la siunun Itrn-
a) Il.,.r rem. lb,• Lt,e Intl ,hall hr tb
rrnl in rffcct nn Aul;n,l 1,, 1971 or ;alt
real[ in ('(fret ,udrwqu,•N 6, till, date if i
was Ic.,. If nu rrr4 was i1, effort nn At,
gust IS, 1971, a:. ill III, ,:,.r of newly au..
,articled unit. rumplocd ., fter IIIi.s date, the
Last error 01-111Le e,laidnhrd by the Board
Lescd ort the generally prevadinl; rl-nts for
comparable unit, in ill(' City of BerLeley.
The Lase rent hall lak,• ('(feet ninety (90)
day, after til, rlrclinn of the Itoard ;mil
Ihr Ilea r,I shall admiui,lrr a ",:;hack of
n•nis rot all "mar,illed units to this level
and ,hall determine, „Erre nrcresary, the
actual rent level In effort nu Ali :list I5,
1o7I. L; 11,m :ggmn'al ,f do, (:hartrr
A n11rodment by talc (;alit,rnla Stale Legis-
lature and pending the establish[ ent of
base rents and Ihr r,!Ib,.k of rents to the
base rent level, no Lmdlord shall increase
rents in a rent-r,nlrulled unit.
h) Rcgi,lraliun: I'he Board shad; re.
quire registration of all rent -controlled
unit,, their ha,e tent•:, and the housing
services provided mI form, :mthoriaed and
voted by the Board.
S. Maximum Bent Adju,tnenls:
The Board nay make Individual rent ad-
jm.tmcnts, culwr upward nr downward, of
the: maximum rcpt esrahl Need as the Lase
rept for n•n .,ontr,lled units under Section
•I L,). Thr I:r,.o'1 ,loll rceeive petitions
front landlords :Intl tenants for such ad.
jusiments, and shall conduct hearings in
accordance with the provisions of section 6
to rule on said petitions.
In reviewing such petitinm for adjust.
ntcnls, the Itoard shall c,naider relevant
!.,('tors including but nn[ limited to the fo1-
two ir.g: ;u) increases or dr( mast•, in prop.
erty' taxes; b) unavoidable increases or dr-
cre:,ses in nperalitgg and maintenance c.x-
perlles; e) eapitd unpun•ement of Ili,.", -It, Innl..i, ill lit ;:lit .tied Incl
trpau, rrplaccmr:ttl nd Inaluir-
u;uc
,0; d) Inrteasea 1,r drermses or liri:q:
,p.wv, (nnulure, furni.hing, or vgmpmrut.
c) sub,t.nuul deterionution of the rent-cnn-
Irollyd ton other Ilti
eo, ;I, ;, result of an
Italy .v :,t and tear; and f) failure oil the
e p.,rl of the landlord to plovide adegu:,te
Y hou,In): 'ervic".
It
AFly andlord who
p,tomn the 11u,rJ
b,r ;un upward rent adjustment shall file
with well petition a r,rtification from the
Laity of Berkeley Buildirog Inspection Srrv.
Ire which states Ih;,t Ill, pmol,,, in lines,
I'll" arc 1,I [till and complete compliance
wuh the ;11.1,1 reaL]r [,ale all Cal forma
Ifealth and Safely ( nde3 and the City of
Berkeley Iluusing Cock h.urd on :n,
imp",: -ion made no more than sIx months
prior Io the date of lite landlord's petiliun.
',rich certification shall he prima facie evi.
,-we of the nonexistence of Code vinla-
liomt, erbnitaldr by other competent cvi.
dente introdured by the tenant, certific•a.
tion notwithstanding, The Board may
rens, to grant an upward adjustment if it
drtrrmines that the runt-conlrollyd unit alt
question dors not comply with the require.
ment, of the aforementioned Codes and it
it determines that such lack of compliance
e; flue to the landlord's failure to provide
normal and adequate housing services.
6. Maximum hent Adjustment Hear.
ing,:
a) Petitions; •1'11e B,.,rd shall consider
;ut adjustment of rent for au, individual
rent -controlled unit upnu receipt of a pili.
tion for adju,iment filed by Ill, landlord ,t
Irmult of such ;I ,nil nr. a form provided by
the L'uard. Sri such adjustment shall he
grunted until after the Board con'odrr.
the petition at an adjustment hearing.
b) Notice: •ILe ii,ard ,(tall ratify If...
Luahlnrd, if the pelitinn wa, filed by the
Irnant, or the tenant, if the pelitinn wa•:
fled by the landlord, of the rer•rild of suet,
a petition. The hoard shall schedule a
Ip paring no earlier than till- sixteenth
(16th) day after the postmark of the notice
of file hearing sant to lite parties and shall
Iif1:M;NN%D v CITY M. hl:lu KLEY 1`11. 1037
\ITP .I,I `. ,�. of ��•I Ib.� I:.., J��, ....,n .iu.l .� p7 of Ihr
o,.,,btrh said
If:ev o Ito i;,.,rmp Il.., lit:. hall he
,!I, �b,,,•,I i... True-. n.., 1 � .1,., ,�uut b,1 .II
polo,, oldui.ng .•'u.:id, �•I .n•knnh
If, stow, m,. 1, p'' •;,�.,.•.,1 �iamnnrd
for g.'I'd Tamar pt ovld rd I!.,', IIf pasture I,
�'rirr Yunrly mA1a ut ,00h a, nun.
v) I:c, l'hr li,•ard may iolime It -
IT. pa n•n
.,Fly to l .om
1plsleul Petitlun to
prow ulr• it with :dl pctnncrt Lu..6,, nvnd.
I p:I pe r,. }orlt dor mnrnh _Call Le ut ale
:rvailahle lu the pa mics itrvulcrd :d Ir:ul
,rc,•u d:,y•, prior In Ihr
I. of III, Lent I:unTml I!onrd.
,I) • )p, a h1., Tito;,. Ali eau �dio-i o,nt
Im.�nng, .li.�ll I�r afro L. tlo-� p�4�b,
,) I: n;111 !i• ., si .tanrl• x111 porde,
lir.. ring In Y hae, aso,tan, n. 1"c"otm,
rt1111.111'm
. ,l III "1"J'ng Ilion pu
i„itin
f1. au at b.l 1'•'r 1,!al „"rIt r.., 1. Italic :u111",11rt•pm>rnbdi:.., or ery t.,:hoar prr•.,'ll" de,ig
n:d,d
It 'aul parties.
f) llrorint: record 'I Ill 14.ud ,hall
❑take avaihd,lr for in,prct on .o:d cnpvinl:
by any person an official rrronl which
,ham
ll cu.x
tillite the eclnc
,3%v reord for de
vision un the issues at the hearing. 'I lie
rrcnrd of the hearing, or :illy part of one.
shall he nbl.tirmille for the rust ut copying.
'Pile rec, rd of the hearury: shall in,Judc:
:dl exhibits, papers :,till dncurnew, , rrvptited
to hr filed ill accepted min crid.•nre during
tilt prorording; a list of lioliripants
pr.: ; a snfnmary of all Je L.11tnony ;u'..
y,n:d in 'h, pro(eahnK; e xta,•nm•nt of
;ill rnmertalt officially tlnit,ed; :III food.
n•.;, of fact, the rulini: nn ,each r, c'epli"m
„1)rct•it'll. If any are. Imserltr,l; all or
commntrndrd decisions, orders or rulings;
:ll final declsiun, ;old/ur orders; and the
reasons for each recommended :and each ❑-
r.al duct—ton, order or rulm,^,.
g) I)erisions: 'Ilse Hoard shall make a
final deci,iun no Later than fifteen days
r the I"MILsiun of the hra.,
rin;:. o
n•rl adju,lnoo-nt shall Lr granted mil...
,11;.l I,y th,. preponderance of ;he o•vi-
d,'nee ;obinitt,d at the h,arinf All par.
it,, to a hearing shall L,• ,rnt e nelice of
iii ,. �•. Lig ., ., .n I. .i
�... n,„.. I.,,el. :\I the ••.,mr 'un,, It., rr
I, it, 11"• ,11,111 al:., Lc nolified
..I
ti, n ur:ht In puhcud ret•mtr nl the Ile-
" ,.n pw, I.,ul I•. }Irl unto V � I Ihl, Char-
I� r Ao., .r her nt
h1 t tw ,bda l lona 'I he Ito, :.I rlay cuu-
•.ohd.n.• prnlman IeL lite; to I cnt_, ontrolled
unit. w the ,.one I-oddmg with tile wnitat
I e,vml of :, majority of The I••nants and
. II •.m 11 pe l i l i on, may Ire c... „tiered in a
le.lrmg.
II H, Prtlnun' .,\'ulwnlhldud;:n, aov.,Ih-
rr !d ovl.um .l thi, Section, Illy Board
n1..y, woman ludding to hrarang, trim, to
adlud tu.,simnm tell Icvel opward for
an indoolo"i tcntal non if hearing has
I.rru 11-1-1 wrth rrg.col o1 the a mal level "I
•aeb Iw't orthnl the prm❑ L. rlvr months.
1) 11,.idrgn.00! o1 Ld,e inhumation. If
in lPrtn.dlnit Ided IT ,, peti l ioo for n•nl ad-
pl,tmenl or to addll mnl:d sulno,,,inn, filed
at the rrque,t of the Ifnard n inadequate
or fad„., nn actino .hall lir t.lkrn on said
petition mail the deficiency i, n•tnedied.
i. P:elr Una•, .
a) \,. Lmullonl shall bring any action to
recover pus,r,uou of a rrnl-controlled unit
till,...
(l I the lens 1't has Luled Io pay the rent
to which the landlord is entitled under the
trllt.d housing agreements; (T) the Irnant
It.,, oolalyd :ci obliKation or rovolant of
her of his tenancy other than tile obliga-
tion In •nrrrrnler posarssiml upon prefer
nolo, and ha, failed In run• •.00h vinla-
Iv.n •1h'r having removed e,rtltcn notice
Ihcmuf from the landlord; (.f) the tellant
i, rommnting IF permitting to ,sol a nui-
sanc, in, or is causing suhstantial damage
In. III,- rent oc;trolled unit, nor I; creating a
.ubstant"d interference with the rnmfnrr,
r,afvly or enjoyment of the landlord or oth-
er ,tigl.ml, of the s.nne; (1) the Tenant
e, r,.im,trd of using or perrnlllmi; a u•nl-
rnntrnlh•d mart to hr used (or any illegal
porposr, (J1 the loam, who had a rental
Innnan; agrecntrnt which lilts Ierminatrd
lO:Sti '''II :'''ll I'AWFIG RM 'fd SBltl hs
:\I'I'it:;ill:•,. 1 „nnnue�l
h.r, n'tn.rd .ofl'' "logy, nqur.I •„ de•
u,.md In' the In , •. ,00hs ,l a Men
r drn,ion or renewal there--[ fora further
Iron of like durmi,m and m m), Iran, a,
sue nuI cnn,islem IInh to, •:olalivr of any
provi,iuu, of this (:har:er 1mrn,lmcnt and
aI V materially Ihr :.sone:." n,I the prrviun,
;lgrerment; (6) the Icilant I rrhucd the
landlord reasonable access 11, the rent rmr
indb•d uuit for the purpose o1 ❑iakinl; nec-
e;,ary irpairs (or irnprovenuint required by
the I"w. of III, United Stairs, the Stale of
('alifnrni;,
(or ;my ,tihdivi,iou III, to
for the purl...... n1 in.peclwu :r, permitted
lir tcquirrd by the rrntal Ii Dosing agree-
ur•nt mr !,y law or for Ii:r 1nrpo,e of
,huwml( the rcutal huusim; ""it In any
pro.prclivr purrhaser or mortgagee; (7)
III,. Irnam holding at the ,•ml of the term
of the rental hou,ing agreement is .t mb-
len:,ut not approved by the landlord: (h)
file landlord seeks to recuvrr possr,sion in
good faith for use and occupancy ofher.
self (or himself, or her or hi, children, par-
cels, brother, sister, fathernl-law, "loth-
vr-hi law, son-in-law, or dauq;hter-in-law;
or ('t) the landlord seeks to recover pusses-
siun In demolish or otherwi,r remove the
rent.controlled unit from horning use.
b) A landlord seeking to recover posses-
sion of a rent-, ontrolled Imit shall apply to
the lined for a certificate of eviction.
Such applicatinn shall include a copy of
the notice ur quit served uo the tenant(s)
ar,d mint contain statements made under
pains and prnallias of perjury that: (1)
there sur no untsCmding Code violations
on the premises or, if there are any, they
were all substantially Soused by the present
truants; (2) the landlord or her or his
argent has properly sent to or personally
served on the tenant a notice terminating
the tenancy and said notice has taken legal
effect; and (d) there exist facts which
justify issuance of a certificate of eviction
Imder Section 7(a).
r.) '11), L'oard shall notify all concerned
tcnanrs of the, landlnrd's application for a
cerU Ocatr, of eviction and of their right to
contest issuance of such a certificate by Too-
1-%--
e-
11u: (i) they,
II•r ir,rrvlul� .00h nulllu:d
it froom Ilse
l...... tiaul uol,l.o .d ism shall hadudc a
ropy „I the la ndlurd':. :glplica lion :,not
,C�I�•n moor, :md .nt:nrhuu•nr
dl If the tuna, t reynr,l, sn•:h :n hearing,
III, No.,nl :hall •,11,:did, .,ah a hearing
Ivitlmn ,rcrn f•) •'a)"n a(Ier receipt of the
Ico.un''. request and notify all parties as to
Ihr lime, d:ur. and place of thehcaring.
I At '.aid btnring the burden of proof
Is uu Ihr landlord to prove the Cats attest-
ed to in her m hr• appllraliun. Vu cvic-
linI rrrlificale Shall he i.,urd if: (1) the
Lunllmrd fail, Io prove Ihdl no Code viola-
tion, exist o, the premises ur that any vio-
Ialinn. which it,, • xisl were Suhslantially
cawed by the pre"Int Innanl(s); or (2)
the eviction is in retadi:diuo for reporting
Code vinlatiuns ur I inlalions of this Article
,it for nrganiziog other k'n;nn s, or for en-
forring righty under this Charter Amend.
ment. 'I'lle provi,ionr of Section 6(d), (e),
If), (1:), (h). (i), uld (j) apply ill a simi.
loumanner In eviction hearings.
I) 'floe Board :hall grain or deny the
certificate of eviction within five (5) days
after a hearing is hchl un the landlord's
Application.
g) :% Landlord who seeks to recover pos.
u•svnu ,If a rent -controlled unit without
first nht:ening a rrrlificate of eviction or
who recovers possv,sion without first ob-
unining a certificate of eviction shall he in
violation of this Article and shall be sub-
ject to the civil prualtirs available to the
Bn:ud, the City lir the to oanl under See-
Iunl If). 'Phis subsection shall lint apply if,
after the landlord has applied for a certifi•
call, of cvirtion, ibe tcnaunt voluntarily
abandons file rent -controlled unit. The
provisions of this Section shall be con-
slnu'd as additional restrictions oat the
right In recover possession of rent -con-
trolled units. No provision of this Section
ah+dl entitle any landlord to recover posses-
.im: of such a rem eantmlled unit. Upon
o decision of the lhird concerning the
I,rantng or withholding of a certificate of
eviction, either party may seek judicial re-
vn'IV• o
Iht•Into
8. ;\
\my
n. or 11
II.: Il1C
hr !Ivel
:soli
In
j.
A ko
u'I lull,
may se's
111. I
i
i
t;11'1'1.111r.
CITY .I l' ,'. I: (KEIXY
,..!I
r.:. •.1 ,. hr:.'•, ,uy ;. ,.. .I. :( Ii�.. 'err ll,
Lr drrnlod br Lc .r,:.0 illi pullhr nllry +cal
'I IuJ1, ml Rrvlen
.\ I:nldbull o, Irunul .,I?lrir....I I•v .rlj
.ti emil, Icy uL,l ion, or'I• -r I..r: 1 I:I I!1'
u:.el ,111, nrllr'lal 1'-.c Ir:.rppo J.I q; br'hr
appropri.d.• r :tet ,P!e In r'. tie e.. ....
lu, I.r.d I'•�nlyd ll,,
intimi la,fill rr'ol, ill sio.
lal tint of :he Provi,lnn, of !11, -\110 1, or
,toy ,tilt.. Ir nl.Itlnn I.r of der lwrcru:rlrr
promulgaled. .11:,I! I,,- Ir .I, Lrrrinairrr
provided to the lemon it if
•...hili ,,1111
payno-Fit I'
dr'w:o:dcd, art. cplul, Iocciwd or
1'i:oucd, Int lea sou:d.lc adorn.)•: ler, and
cot, an determined,y the rutin, pins dwn-
agn in Ihr amuout of two hundred dollar,
I jaxlllu) or not intor than Ihrev (3) times
lite auvnmt by ,ho'h the payarno•nt ur pay
mall, dcnl:on,•d, .Irccpn•d. reIV ell .,r t1
Iained, whirlirver k Iht givaler,
,) 11 Ihr tenant (milt h... it sud. I,.,)
merit i, drnlanded, accepted, reerived, or
r, mined is violation ref Ill,- lnovi,ion, of
Ihi, Arli,'r :uly I'll', rrl;ld:mm11 fit 'o-
,:er hetemurller priming :lied f:til, to .,Ting
.In ae•wn ,^'er thI -rnnn ,.thin thirty
day, from Cl- '1;,t, ,i the urourrtmrr ell
;itI, v ... Intiuu, the Boanl may Settle tile
claorl ari,ing out of the violation or ,ring
,och action. "I'hrr,inafter, the tenant on
whose,ehali the l card noted Is,arred from
also hriliging action against the landlord in
n,gard pl the ,anic ciolnoon for which the
I:oenl ha, m.Ide a ,1Ulrment. In the "..rot
ihr. Board •.tltles ,aid . L.im, II ,hall Le co-
t:tlyd to ..•rain Ihr• env; it incurred in the
•,rtt!rrnrnl ihcrrof, and the teoanl :ryainsl
•,iunm Ill, ve,lntluu ;..I, ,ren ' orno itled
.hall,. rootl,d In the remamdrr.
1•.1 d.o,:.. r•ll lit
h.,
L•I. unll, I II I . I I lou
.I. u. hal 1,.1.1, I•,"u I. uP'aI Illi.
(no•d the ..oust I:uldlwd on :,c-
:.nulldal..In ,rdh IO.1I In the
It ., .h1, 11 '.ul11 )1'11,411111:l _.r, 1 6I
.L;r .. Irnn t:, ro.vn Ilyu!Jabl
Lou
A,;•:, r.. Ihr ItlVVio"o, ill 1;o '.o,ltol.
,!I. I: I Lr Ia ooght Luer 11•..1' •ml, ),;it
.r fo r Ill.- I,o,t of Ihr ,'o dation.
d) 'I i..• ll till., 111.11 11, iul".1o. r I "fit I, . -
Ih1'.. 1• ";kilt Lr, onhnl o, h.,h rhe n'nt
e out roti•d un 11 .IIII., '.,,I 1, L...rrrJ aIodl
Ila..• I.dwoml ,,, I ..It :o non'..rill roup
pLl.til .'..rnr,:ht uodrl I!u, ill I..o
1 : Ir I. IIII, ill:'x!1.1 v'• pr.1 Irl o,rr,:.
of I!1' r.l, nuns. n^II rt I•, 141 Itr'd ill a,
dlrH monrd :o a It, .,I un! held Ly 11'. Ibl.od
or :. ho,l Inn ,;I','. n•.!lrnd do
rlyr Ir, ,. uo
Lo"'n .•t 1hi, .\,lir I.• .hall Lr entill,"
I. b:nd Io !hr ;'n1o.."t of :hr Iv1•, p.0
nlr ill. lalaoil tuay' elect l„ deduct arc,
:...loom, ..I the rt. fund dor than hr,tn th, r
flllnrr I. it II:()'nlrlll,, lather 01.111 pllflIunl:
the Irl:l•ly plovidld ...tiler •ehl,o illi a).
I'"'"
'"' nlnd ilial lltcy morrm Ill, Lo Vllord in
:ol,, ttrr- In wlllmg is to Ilwo ❑nentioti to
d., So. 'Lcu.ully .hall nut ,r prn.dltcd by
l:mdlnn!, for ,l'durtlnh their refund Ilo it -
ani to till, 1rclmn.
1) 1l n I,M4111 rd r ort, a tr::aill wt'houl
a Ivtlulr'.ne of evirtnm uhi.onei t.um the
I:u.od. Ihr tenants nhhgal,"I to pay rent
1u the landlord duriog he prnod I...ginning
,villi it,, Jilt(, of ihr actual rvotion and
rontinlloo! for tilt- pcnorl iu "11,01 lilt Irn-
:,ut i,'Ilspn... lsrd fur a nlavolloo of one
year I, automatically so,proded and the
tenant 1,, entitled to a .Mood of .rut in ac-
cordance will tilt provnlulu of ..rot inn
IO(c).
11. injunctive Relief: IIIe L'oard and
l rnant, and amilurds of . rill..... trolled
tune%:nay Seek rclirf front a \funlctp:l or
1�1:!•ell le (:,,ri In .r,ir,00 1,)oijolirtioll
any '. I.,I,II u'II of ❑n, .\Toole .Io.I ,n the
I ul1,, n'gtiLouopl aull Orre.om, of till,
I fu.o 0.
e
10111 "ILL
0 0
„I PACIPIC Itcpmt-ITH, 211 statlfs
.\1'1'1•\1,1\ , •„I,Il"I,l
I' I'.,I Ila Ir, ''.,
11 :u,v p„�. i•.nm
dun, IhII. I•,
t• 11"!11 un d
,y two ."m of ,n. -
,:
..-:I
till, mland:ly
ill,'. , -tl aih I Will
1,n,•. i,iana Lr .,r J,iatu,
r.. „( Ilu• Art', Ir
whu;11 cm L�� p,,•��,
rip-' 'a ilhum Ihr m
v:du1 pn,�i.iul: m
:,;•1,L, .r. .,It, ou.t It ln.
I:ud Iia; pinri.nn,•
.
"Novell tt hr •.cver.l::
r.
4ctioo IL 'I'hc
ti: m •ntrn"1• t( 4".
Ileo S. AItitle \'
of 1�:. I IID rI ••f u( ,Lc
Ca) UI Merkelvv I.
....... ,,I,',f III IYa,I .I,
Ions: '..I'he "let tivc III, rs ui the (.Ily
,haft Lea \lay,rf,
al ', Ivlilur, ,;.;hl (I')
Coon, it \IcmLrl,,
i:tr t,1 tichuul Ili",.,.
five (6)
Poo I I;aunol Itua„I
Iul>, .lull
l ill II I II i till UI IC f,. '
1'71 , d.1:1,11 .+I1
t In re Frank William l7EUMAN, Jr.,
-111 on ':uglxnsinn.
5. F. 2119fi.
1 Sllprvow Cuurl. ill(l:.0 mill,
In hunk.
• JIIII✓'=-, 111111.
In di,rlphnary pi,eceding, lit, Su-
prenn• Court 11,111 Ihat Lias and circum-
etautt•s of case were relevant in determin-
ing Appropriate di,r'pline In Le '"To'ed'
That burden nal oil its tnioner 11, •.how
Lnard', rcunnilef"Iallull was erru"("is'
Ih:t cnovictinlls far i;rand thrft and f:dsl-
fyi1w dncumcnts a:lrrinl five yeari ,us•
I o•n.iou, in, three years' actual sus-
prl:,ion from rf le, live dale of Supreme
r-mlrt', order.
Ordered accordingly.
ern ....1.1,utp,'„....,lu:lpiludr. 'I'L :
.. Allnrnxy aml Client ”"Sit2i
I,d„ „nn r,.d, I'" In I„u fuIIII!
,.I 1],, and m:1 n,ltnt ill pn'pmmg Ldsc
,,,Irmo cunaltlnes c•nl"lu.'ve "v idencc of
m :, diuq,Llmry I rnrrcdlgK. Wc,I's
.\Ln I:11s. 2: I'1nLCu,lr, � GIIII ; \\rest's
Acn.l',ua ),de, j� 114, ,til, 457.
:1. Attorney and Client
Ina disciplinary pecceding, facts and
„I nuusl:ill; ,•; curnmu,hl;h com'ictiuns
upon Pira
(if nolu Coln, ,fere nr crimes
nu—Intrad tarp'ludr are relevant, not
un Ihr i„ur of rtutal Inlptude, hill to dr-
ta-u,unr the appropri:d, di.cipline to Le im-
1,n+rd.
.1. Attorney and Client V57
In a pnn'e"dlllg In Icvicw the distipli-
uary rr"nouncmulatiun of thet:ttt har fur
.In atwnu•y', ,uspnt,wu milt, pl'aclicc, the
Innd,lt is nu the prm:uner to, show the
I„,;ud'�. n•"mnnu�ndul u;, i, en nnnnl..
I. Attorney and Client C-39
For ptirpr„e of di,tiphnary prltreed-
ulgs, crimes of grand theft and falsifying
documents to Le used in evidence are
5. Attorney and Client 4•:,a
1.'rinles of grand 1110t and falmfy'inl;
dtnnuruls
to, hr tile(, iu 1'vidcucc arc gloss
rt unr. and conviction, therefor warrant
d1'.1'arnt,ot in Ihr abwocc of utitigating
I'.Ircullista ce5.
G. Attorney and Client (158
1!ach ofisciIII mlry 1)rot vvII log must he
n':!.iverl on 11, own particular facts, and
111, le arc fill rigid standard; as to %he ap-
prnpri:nr pcnAll)' tt Lc impu,r•d, so that
similar offenses may receive widely vary-
...;; degrt•r, of puui,luncnl.
7. Allorney and Client (G SB
The Supreme C(Init rvlainn the final
,,.rd as to discipline to Lr imposed in A
di,i iplinary pmccedinl:.
It. Attorney and Client l:; 58
'['lie recommendation of the discipli.
nary Imard of the state liar is given great
err lght In a disciplinary hc:lling.
,1. Attorney and Client Ca58
In It disciplinary prucrcding, icslit I-
lion of misappropriated property may he
11. if
TI
often'
Stat
floor
Ione
ural
III
Sept
f ,IIr
• cr'
441)
df
MIT
•WO, n-urrill g).
f dauuag-s set by
.1 by this nmrl is
: rrvure in [his
❑Icddu' 66K•uurl
lir.
lh (lit- imq,nssion
tr,.•..iv,• nunimnl
al a Aburitics for
u a:,-Owr tenant
:nse, seeking in.
w•suil ,equivalent
saint. time, the
re that had the
wts then- was a
is in obtaining a
aintifrs pr,wf of
The expert les.
(lue was based on
at b -cuss• of the
,laarty would nes
d (2) lits[ hal for
e propa•rty would
:"sump.
any nnxnmo-
for. are not relic.
• Intal r-conl the
to mf damal!ax in
is just and n-asun-
r, In,w•(•vcr, that I
blishment of any
.,o the tffrrt that
to .hold ke rr
.,mages with re-•,
line involving the•;y
'rd here Nor do
the court as to-'
t would la• maaf
.able in the nw r.
that her. Just°
this concurnrm>L "
.J
STA'T'E h;X RFL MICHALEK I. 1,eGRAND
fllr a )n] NA, sa, Win. 505
STA'T'E ex rel. Linda h1l('11A1.!•;K, and authorizing rity building inspector W
deposit such n•nl payment( into escrow
Pelifioner•App•llanl, :,rrounl until such lime its premiaes in-
s. valved are free of any violation of city
Alec I.eCI(AND, IirxprodrnL building and zoning rode was authnrved by
home rule amendment. W.S.A.Coo,t. art.
No. 711-123. 11. § 9
Supnaue Court of Wisconsin.
Argued ,March 1, 1977.
Decided May 17, 1977.
Ttnanl sought a writ of mandamus to
ampd the Milwaukee building inspector to
enforce .n ordinance providing for the de.
posit of rental payments in an escrow
account for the Lndlord's refusal to bring
the rented premises into compliance with
the city's building and caning code. The
Circuit Court, Milwaukee Cnunly, Harold R.
Jackson, Jr., J., refused x writ of manila- 4. Municipal Corporations R -592(T)
mus, holding the ordinance uncnnslitution- Milwaukee ordinance providing for
al, and Icnn[ appealed. The Supreme withholding of rent payments by tenants
marl, Robert W. Hanson. .1. held that: (1) and authorizing city building inspector to
Thr• ordinanc- w;Ls aalhonmd by lht home d-pisit such n:nl payments into escrow
rill(- am -nim -lit! (2) theordinhu'e did not i rcount until such time a, premises in-
umflic[ with the sial,•volved are free from any vinlxliun of city
building and zoning talc did not conflict
with statutes dealing with notice terminal-
ing tenancies for failure to pay rent and
termination of tenancies under ]ease for one
year or less. W.S.A. 70417(1)(x) (oxa).
5. Constitutional law X305(2), 309(1)
Milwaukee ordinance permitting depose
it of rent payments into escrow to enforce
city's building and zoning code provided due
pr(eess to landlords prior to withholding of
rent payments where ordinance provided
for servicu of notice upon landlord and al-
lowed Landlord 20 days within which to
request hearing and thereby ps+Lpaoe or
prevent issuance of order euthorizink runt
withholding.
3. Municipal Corporations —592(l)
Milwaukee ordinance providing for
withholding of rens payment,§ by 'tenants
and authorizing city, building inspector to
deposit such rent payments into escrow
account until such lime as premista in.
volved were fret from any violation of city
building and zoning code did not conflict
with statute declaring that residential
buildings which do not comply with local
building codes are public nuisance. St.1973,
§ 290.22.
mance prnvl(1ca sue process to landlords pri-
or to the withholding of rent payments
under the ordinance.
Reversed and remanded.
L Municipal Corporaliuna X65
Whether challenged Icgi,l alive -nact-
rncnl, stet- or local, Imell'"9ng aala:ct, of
statewide concern and of local affairs• is
Primarily or paramountly' matter of Intal
affrtrs under home rule amendment or of
rtal.:gid(- concern under the exception
thereto is fnr Courts U, determine. W.S.A.
Const. art. 11, § 3.
2. Municipal Corporations X594(1)
Milwaukee ordinance providing for
withholding of rent Icayment, by tenant,
6. Constitutional I.nw 4-305(2)
Whenever Ia•rson is deprived, even
lempirarily, of prnloerty interest, Four.
teenth Amendment requires that he be giv.
en opportunity W be heard at meaningful
time :and in meaningful manner. U.S.C.A.
Const. Amend. 14.
50(i Will 253 NOH'I71 11'IiS'I't:ItN REPORTER. 2d SERIFS
FACTS.
Favi:. hast- bv"❑ stipula Uel W Lc Lm• the
trial court. On May 21, 1975, lM'lltmnPF{if).
ry.11:Ott Linda Michalek filed a petition for a
writ of mandamus seeking W compel re-
spondent Alex LeGrnd, building inspector
Of tilt- city of Milwaukee, to implement sec.
,51 4 of the Milwaukee Code of Onli naacca.
This section, which provides for the with-
holding of rent payments by tenants, autho-
rizes the city building inspvctor to deposit
such rent payments into an escrow account
until such time us the premises involved are
free of :any violation of the city building
and reming ceXlc.
Appellant's petition stated that she had
moved into the premises here involved on
April 1, 1974, renting from the landlord on
a month-to-month tenancy pursuant to an
ural agreement. On Odder 25, 1974,
water leakage from the ceiling of petition-
er's apartment resulted In damage t, vari-
ous personal belongings of petitioner.
On November 1, 1974, respondent issued
an order W "correct condition of premises"
to lire owner. (This order directed that the
Motif be repaired to prevent further water
leakage.) On December 9, 1974, this Order
was nscinded after respondent certified
that said repairs had b i -en eubstntially
completed. finwever, the roof continued to
Icak. On February 19, 1975, respondent
issued another order to the owner to "cor-
rect condition of premises." This time the
demanded repairs were not made by the
Owner.
Petitioner then sought eo withhold her
rental payments, pursuant to ser.. 51 -40) of
the city Ordinances. She requeste+l an so,
thorization for and a designation of an es-
crow account for the deposit of rental pay-
ments, as provided for In sec. 51-4(1). Ite-
xlondent refused to authorize the escrow
account, hasing his refusal on the possible
unconstitutlonality of sec. 51-4.'
1. An. XI, sec 3, Wis Gmsl
2. Sralr ex, rel. Ek,.m v. Milwaukee, 190 Wis'.
1133, G37, 209 N.W. 860 (1926).
I'ctiiiouer then rmium-riced this mnndrr
unta viiun .cc6ing to conga -1 n•spxmdent W
coforce• Orditunvr SI 4 The triad court
refusnd the writ of momdumts sought, hold-
ing urdin;wrc 51 4 of the Milwaukee Cale
of Ordinauccs uncunstituliun:d. (Order (Ie-
nying writ issued un March 30, 1976.) Petit
Lipner appeals.
George It. Flgar, Milwaukee (argued),
for appellant; Inuis J. 1leslre, Milwaukee
]A -gal Services, Inc., on the brief.
Charles R. Theis, Asst. City Atty. (ar-
gued), with whom on the brief was James
A. Brennan, City Atty., for respondent.
ROBERT W. HANSEN, Justice.
Challenged here is the constitutionality of
the ren withholdin u ' tance of the cit
Of t waukee, enacted W mrope comph-
nnce with the city's building and zoning
code.
Our discussion begins with reviewing the
reach and impact of the municipal home
rule amendment to the Wisconsin C4tnstitu-
tion, providing:
"Cities find villages organized pursuant to
state taw are hereby empowered, to di
t:rmine their local affairs and govern-
ment, subject only to this. constitution yy
and to such enactments of legislature of 7R
suite -wide concern as shall wi tum o
Ity affect every city or
-��
Our court has held at an curly date that
this home rule amendment accomplishes
two things, in some measure distinct: (1) It
makes a direct grunt of legislative power to
municipalities; r and (2) it f Ra the Ie ria -
ture irLjhQ exercise of its up neral nt0
legis ative ower. does a trill, .
t Xpress y gtving cities and villages the
power 'to determine their local affairs and
government."' It does the second
by limiting . . . the legislature in its
enactments in the field of local affair of
3. Id. at 638, 209 N.W. at 861.
STA
Cities and villages." a Sur
expression of the will Of t
literally construed!
In defining what is or is
such empowerment, which
ly granted to cities and vil
"to determine their Io-
government," our court If
areas of legislative enact
that are "exclusively of
cern;" a (2) those that "ma
fieri as entirely of local e
(3) those which "it is no
. . . exclusively into
of these two categories."
As to the third "mixed
situations, our court has r
that many matters while o
cern, 'affecting the pfrop
large somewhat remotely a
at the same time affect th
nicipalities directly and int
sistently b c, and are, 'Inca
[home rule] amendment."
[I] Whether a challeng.
actment, state or local, puss
4. Id. at 638, 209 N.W. at 8e 1
S. Id at 638, 639, 209 N.W.
court also holding: "The w
and government'
essanly must or ought to 1
such as a constitution, in I
terms, should have a liberal
Ing toward virility rather
I. Muench v. Public Service
492, 515f, 53 N.W.2d 514, 55
See also: Van Guilder v. .Ma,
82, 267 N.W. 25, 268 N.W. I
with expressed approval Chi
.ZO an Adler v. Deegan, 251 I
705, 713 (1929), holding.
affairs exclusively those of
the law of domestic relatons.
Lance, of contracts, of from
foul (for example, larcer,r o
ganization of courts, the pro
Id. at 515f, 55 N.W 2d at 4
Guilder v, Madison, supra, n.
8:, 267 N.W. 25,268 N.W. I
wllh approval Chief Judge C.
v, Dergen, supra, 251 N.Y. 4
705, holding: "'There are :
malrly connected with the ex
of Its corporate functions, wh
only. Illustrations of these
(1) it
x'er UI
Of
es the
rs and
in iu,
airs of
ti'rATE EX I(El- MICHALEK V. la•GHANU Wis. 507
('It, e, 1s3 Nw,2u Sas
61i.." and village. S."4 Such a 4'unSUtotlonal
"Stale -Wide I•u ll, rn" hurt of "hoval affairs,'
vxl,r. !-,io l (if till' will of the pe•oldr 14 to Ia:
19 primarily or paramountly It amtle•r of
lita-mlly ronstruvil."
,hual affairs ;cod government" under the
In defining %vital is or is not it matter for
home rule amendment nr of ",,tate-aide
sorb rmpuwrrmcnt, which is ronslitutional-
concern" under the exception thereto is for
l) grunted to rilics and rilhsges in this stilt•
the cuurLs In delermine.
"to determine their Im:11 affairs and
Applying the teal of paramounty, in the
ge.-.-rnnie Fit," our court has walinod three
phern !';ilei our court held that the hrighl
an•a:; or 14-yidative rnartment: (1) Those'
of buildings in a particular community was
that are "rxrlusively of sL:de-%vide eon-
;t rnstler of lire "lural affairs' of such cum-
cern;- t<l l r use t at "may he hurl}• c aTs•.—
munity within this meaning of that term as
Molts entirely of local character; "l and
used ire the home rule amendment." Con -
(3) those which "it is not possible no fit
trsry-wise, in the loan Guilder Case, this
exclusively into one or the other
court held that the cnmfeensation of police
of these two categories. " a
officers was a matter of "state-wide con -
As to On. third "mixed hag" category of
cern" m that term is used in the home rule
sit Wdions. our t•ourt has recogaimd " —
ame'ndment.lt
that many matters while of 'stale -wide con-
Our court has subsequently made clear
cern, 'affecting the people and state at
there is no inconsistency in the contrary
largo somewhat remotely and indirectly, yet
re•sulLv thus reached Iveause; "[n lath
at the same tune affect the individual mu-
lases Ute court was confronted with it sub-
nirip;ditic,, directly and inlim:arly', ran con-
ject of legislation which partook heath (if the
sista Fitly for, and are,'Iwad affairs' of this
mature of a 'local affair' and also that of
[home rule) :uocndmeril."s
;xpdr-wide ronr4•rn,' but in the former
I I I Whether a challenged Icgnxlative en-
/EkernJ case it held that the matter wits
art merit, stat: or l4Mal, possessing asiaxts of
primarily a '1(k:al affair,' while the hater
4. Id at 1,18, 209 N.W. at 861
5. Id at 618. G39, 209 N W at k6C 862, this
nntn also holding. "The words 'local affairs
and government' . (()"cited as it neo
essanly must or ought to be, in a dorumenl
such as a ronstnulion, in broad and genual
terms. should have a liberal cunstreoctmn Inok
Ing Inward %%Illy rather than impatrncy"
6. Afuench v. Public Service Corner, 2151 Wis.
402, 515f, 53 N.W.2d 514, 55 NV 2d 40 (1952).
.tire also: Van Guilder v. Madison. 222 Wis. 58,
82, 2157 N.W.'254 268 N W. JOB (1916), quoting
will, exprvsaW approval Chief Judge ('ARDO
/.O in Adler s•. Dugan, 251 N.Y. 467, 167 N.G.
7115, 713 (1!i29), holding "'There are ulhcr
dfans rxclu"vrly tipme of the state, such as
the law r4 domestic rrlabons, of wdls, of inherit
tanre. of contra(ta, of crimes not easirMally
least (felt example, larceny or forgery), the or
gamtation of courts. Ihr procedure therein' -
7. Id at :..:.. 55 N.W.2d at 44. Ser also: Van
Godd(t r •.fathson. supra, n. 6, 222 Wis., at 81,
a2. 267 N W 25, 2Gk N W 106, again quolml;
with apprussl Chief Judge CAk DOZO In Adler
I- DerFan, supra. 251 N.Y. 467, n. G. 167'N It,
705. holding "'T'here are some affairs into
r.'. ai rlv ,�nnerl rd with the exerresr by the my
elf its corporate- functions, which are city affairs
rally Illustrations of these I have given. the
laying out of parks, the building of recreation
peers, the institution of public comrrts, Many
more could be enumerated. Most Important of
all perhaps ,s the control of the locality over
payments from the Intal purse.'" '
H. Id. at 515f, 55 N.W.2d at 44. See also loan
(,udder v Madison, supe, n 6.222 Nes., at H2,
267 N.W. 25, 268 N.W 108, quunng Chief
Judge CABDO%O In Adler v. Dery:an, supra, n.
G, holding. "A tune, however, exists where
state and city concerns overlap and entermm-
gle The conaatution and the statute will not
be read as enjoining an impossible dichotomy."
9. .tiute ex rel. 6-krm v. Milwankre..stories, n. 2,
190 Wis, at W0, 209 N.W., at 862.
10. Stale re, rrl Ekern v. ,sldw•aue". sopa, n.
2, 190 Wis. at 541. 209 N.W. at 962, the court
staling• " bright of buildings ,n a par
ocular community Is a problem and affair
%•Inch mnrh entire intimately and durctly eon.
urns the mhahaanls of that ,aumunny than
the casual visitor or the other pans of the stale,
and it n therefore a 'local affair' of such rum•
mumiv within the [home rule) arm -admen[."
11. Van Golder v Madison, supra, n G
_4
0
508 Wis. 25(1 \(1R7ll 11'F:S'rFI(N REPOitfER, 2d SERIES
0
fVan Guilder]decision h, -Id that the'>late- l), protected area of "local affairs and
wide concern' feature was paramount."" government," the: state legislature's delega-
121 Applying this test rOf par inuunlcy tion Of authority to legislate is unnecessary
sr, till: urlimmrc la:fon: its. coaled by the and its preemption or ban on local legisla-
........ b.... r... ..,,OO f.wnCil U, secure lo= live action would lx unconstitutional.
we
city an , as such, au ooze y the home
rule amendment to the state constitution.
Keeping that holding in mind, we now pro-
t•ctd to examine the challenges raised on
,his appeal to the constitutional validity of
this ordinance.
131 The first arrow that the challenger
IMLs to his how is that the enactment of a
rent withholding Ordinance by the city here
is an attempt is Ie914late in an arca which
hasIgen preempl.al by a specific side stat-
ute. Res(wndent refers t, sec. 210.n.
Susi:., which applies only in cuunt.ies having
a popul;ition Of Ifg0pM Or more., and which
declares that residential buildings which du
not comply with Iasi building codes are a
public nuisance. The statute further pro-
vides for the appointment of it receiver in
such situations, the receiver to be empow-
ered to collect rents to make needed repairs
told to abate the public nuisance.
Since the ordinance here challenged is
held to he in the field of "local affairs and
government" under the home rule :amend-
ment, the doctrine of preemption docs not
,,apply. In an arca solely or paramountly of
statewide concern, the legislature may ei-
ther delegate to local unit% of government
11 .a limited authority or r:elsmsi-
bility to further proper public interest,;'U
or may preempt the field by expressly hall•
nin$�htcal.legislalivc action as to such mat-
ter of statewide concern. As to an area
solely or paramountly in the constitutional -
12. Muench v. Public Ser•ire G,mm., supra, n.
6, 261 Wis.. at 5151. 55 N W.2d, at 45.
13. hlenzer v. Elkhart take. 51 Wis.2d 70, 78,
196 N.W.2d 290, 294 (1971).
14. City of neloll v. Kailas. 76 Was.2d el, 66, 67,
250 N.W.2d 342, 345 (1977).
Eva n if there were conflict or potential
for conflict between the challenged -ordi-
nance -- enacted to secure compliance with
the lord building and zoning code, and the
state statute—providing for receivership to
abate nuisances, it would be the doctrine of
paramountcy, not the concept of preemp-
tion, that would here: he applicable.
Recently, in the Beloit Case, which involved
a voiding -by -referendum provision in a
slate statute relating is sewage connection
Orders, this court found pollution control a
clear matter of statewide concern and, on
the other side of the scale "matters of pure-
ly lasl concern relating to the tax baa'"14
As to runflict between such statewide con-
cern and such Local affair, our court said
it would not he difficult to find
that voiding of a sewerage connection order
to serve such purely local concerns'111"ked'
advancement of the paramount interest in-
volved." 16
[4) However, in the instant case, while
the purlonses served are related and the
authorized procedures tare similar, we find
neither conflict nor potential for conflict
between the challenged ordinance amd.ste
2wn, Suits. They are not locomotives on
concern and the slaauae uta uaca w,
a m• Wneconstitutional reson cer
tLT one o er, 4.4
lath can here proceed, one axing a valid
exercise of municipal lawmaking authority
15. Id at 67. 250 NV 2d at 345. The cuud held
the Krintl Case presented "a crunch between
two matters of statewide conrem. • upholding
the statute challenged as a proper legislative
accommodation of the two mailers of state'
wide concern involved,
under the home n I
other, it would aplx
the state legislator,
concern.ls
The second aria
bow is that the rn
impermissibly confl
ments involving lar
tion procedures. Be
the ordinance is in
761, Stats. Particu
sections of that chat
terminating Lenard
rent J7 and terminati
lease for one year c
Before dealing wi•.
a claimed conflict, w
whefher conflict in G
tory provisions for t
for reasons other tha
we find no conflict I
holding ordinance d
relate to ttrmination
to termination for no:
comes into play only
Occurred, and "del
defined to occur " .
fails to pay rent will
However, that wo
status of a tenant -
nance, pays his or he
amount, to, be paid t
buildine code violation
aWith no conflict 1
talute, and no pommi
give consideration to t
whether the home rule
••enactments of Iegisla•
cem as shall with unit
and every village;' (Ar
includes or does not in
Only to counties with r
Sec: Stale ea err at
n. 2, 190 WiA, at rA2,:
"We also reserve a de<i
question as to how far,
amendment does awes)
legislature to now rnac
effect or application to
classes of olties."
17. Sec.,704.17(Ixa), Sl
18. Sec. 704.17(2)(1), St
_..ors and
urea. dvlcga.
uanr-rv•ssary
hu•nl Iegnt.c
univnnl.
STATE BX HBI_ MICHALEK v. I.eCHAND Will. 509
ell... ] 5a N. W.Id Dal
under Ihr home rule uncudmcnl find the
other, it would ;ggs•ar, it vnIgl enartment of
Ile stale legislature in if field of stadr wide
euuc,•nl. It
The second arrow put to III(• fhallerngnra
Low is that the rent withholding Ordinance
impermissibly conflicLs with state enact-
ments involving Landlord -tenant and evic-
tion procedures. Rwsls,ndenl's claim is that
the ordimmce is in direct conflict with ell
761, Stals. Particular reference is to the
sections of that chapter dealing with notice
terminating tenancies for failure to pay
rent j0 and termination of tenancies under a
lease for one year or lum.ts
Before dealing with the ronsequcnces of
a claimed conflict, we must first determine
whether conflict in fact exists. As to statu-
wry provisions for termination of tenancies
for reasons other than nonpayment of rent,
we find no conflict Ix•cause the rent With-
holding ordinance dais not deal with or
n•late to termination for such reasons. As
in termination for nonpayment of rent, that
comer into play only when "default" has
occurred, and "default" is statutorily
defined to occur " when a tenant
fails to pay rent when due" Is
However, that would not describe the
status of a tenant who, under the. ordi-
nance, pay's his or her rent into an escrow
account, to.Le paid to the landlord when
building ode violations are corrected. The
IG. With no conflict between ordinance and
stain•, and no potential for conflict, we du not
give consideration to the undiscussed question
whether life home rule amendment reference to
"enactments of Is-glslative and statewide con -
as shall with uniformity affect every city
.nil every village. • (Art. Xl, sac. 3, Was Const )
Includes or dams not include a statute applying
only to counties with over I(g1,000 population.
Sr•e, State ex rel. Ekem v. Milwaukee, supra,
n. 2, 190 Wis. at 642, 209 N.W. at 863, acting:
"We also reserve a driision ul,on the Important
question as to how far. if at all, this (home rule)
amendment does away with the right of the
:e„ lature to new enact laws differing in their
effect or application to or In any of the several
classro of cities "
17. Sec.,704.17(i)(3),JSlats.
18. c,.. 704.17(2)(a). Slats.
cmilentron of r, ponii,-w uplwars w Ic that,
under either cnuuoun law or a statute re-
rlecling this position, if landlord has the
unqualified right to have rent payments
paid to him when flue without any with.
holding in an escrow account until certain
repairs ore made, solely by reason of his
privnu• lease ayreement.
Without fully analogizing the situation
With that of receiver to collect rents ap
Ixwirlu•d in foreclosure actions, it should Ife
evident that a landlord's rights under a
lease agreement to have rv•nLLu, In him
when due may k' limited for appropriate
.UAU In by appropriate ie6n5 aT Iv�)udlcln(
action." Our court has noted that there
-��—^
are numerous instances wherein
this court and other courts relied upon the
reserved police Ialwer of the stale to pre. QU
serve and protect the pubarelic wcl even ( G
th", moan imammne on rivbta or
privileges which private partes sought to
secure y contrac .,
We find no conflict Ixtween ch. 7(4,
SIaILs., and the challenged ordinance, and
respondent's brief is hardly helpful in locat-
Jng one. If the contention is that there is
an unqualified right to have rint payments
made as provided in If lease arrangement
under all circumstances, we find it clear
tial " the obligation of contract is
not an absolute ri ht, but is one that may
J7,—(T)T1g—t7 to yield to the ccimjaclhng inter.
19. Sec. 704.17(I)(0 and (2)(a). Stets.
20, See: Pines v. Pression, 14 Wls.2d 590, 111
N Wl2d 409 (1!MI) and Earl hldhion. Inc. r.
Allen, 21 Wis.2d 497, 124 N W.2d 651 (19113);
(lumtmg a landlord's right to ro-ceivc rent
wfiate landlord falls to maintain reeled premis-
n In habitable condition) Srr also: Hannon v.
Harper, 189 Wis. 588, 208 N.W. 255 (1926).
(establishing failure M landlord to ensure the
revenant of quiet enjoyment as defense to eon.
tinued payment of rent). Beringer v.
Mrl.nughlln, 257 Wis, 56, 42 N.W1d 358
(1950); (dealing with constructive eviction of a
tenant).
21. Stare ex rel. lfldg. (hanrrs v Adamany. 64
Wis.2d 280, 292, 219 N.W.2d 274, 280 (1974),
citing Kuhl Motor Co. v, Ford Motor Co., 270
Wis, 48R, 71 N.W.2d 420 (1955), _
,,)Io Wis.
y
253 NORTH wl.-STERN REPORTER, 2d SERIES
Iyf the l 1I li• lh' evcrcise wrlhf IIo- p, ll lVe
mfbct
power."II liy ed her route,
nr, a. Ice puu•er prevai mg, we arrive at the
c revtxla_.n0_
•enc uslon that
amstiudionAl infirmit' in ti -d111E_n�'
151 The third and final question relating
to the constitutionality of the challenged
unlinaoa• is whether such ordinance pro-
vides due process to lessors or landlords
prier to the withholding of rent payments
under the ordinance. Supplementary briefs
were requested and submitted by the par,
tics and the attorney general as to whether
due process requirements were met.
161 tient withholding under the ordi-
nance is a sanction or adveru: consequence
of alleged building coda violations. Thus,
before it can be imposed, decisions of the
United Suites Supreme Court make clear
that the lessor landlord affected by the
prorceding must he accorded due pr Nle.4s.
Whenever a person isdepriwd. -even lem-
purariby -of a property interest, the Four-
tcenth Amendment due process clause of
the United States Constitution requires
that he bo given an opportunity to be hear
..at a meaningful lime and in a meaningful
manner." n
In a case involving the temporary depri
vstion of welfare benefits, the high court
mandated that such "meaningful" opportu-
nity W le heard, preliminary to an adverse
consequence, should include: (l d -
n•sling -Irly un file Irgal rules and evi-
urcr n e caring; am , a
ue
s . •menu rcasua r t rnsum and the
esu cnro relied on, n a su �sequcnt ea -
son, invo vmg •...{Wrary loss of sociall se-
curity disability benefits, the high court
found Iess stringent due process safeguards
adequate.0 Nevertheless, the detailcud
guidelines in the Goldberg Cal whether or
not here in foto required, can serve as a
guide w evaluating the adequacv of the
hearing provisions in this ordinance.
We now turn to the due process safe-
guards applicable to the case at bar. As to
notice of the existence of evade violations,
the ordinance provides for service or notice,
such notice to: identify the lessor by name
and address, specify the date of notice, give
a description of the real estate where the
claimcode xle violation exists, identify the
ways in which the lessor has violated the
code, indicate a reasonable time within
which the lessor must correct the violation,
specify the possible eunsequenre of failure
to correct the violations within the pre-
scriled period of time, and the praxdures
to be followed in obtaining review x
As to receipt of required notice suffi-
ciently in advance of any proposed govern-
mental action so as W allow a meaningful
opportunity to choose to contest or waive'
inmost, the ordinance provides that the no-
tics given becomes an order within twenty
Time v and days of its service upon lessor, unless the
y_ lessor requests a hearing.27 Thus, upon be-
ing served with notice of the existence of
or
axle a days
within landlord
to request as
Y twentyyviolations.
d¢ys
e hearing and thereby-postlone or prevent
i) issuance of an order authorizing rent with -
an ml arLoo - „-• .....
22. Id. 64 Wis.2d, at 292,219 N.W.2d, at 280.
dridge. 424 U.S.
23
S Cl' 893.'902. 471 .Fd 2d Ill 0976)19See Also:
Armstrong v. Manan. ago U.S. 545, 552, 85
S.Gt. 1187, 14 LEd.2d 62 (1965).
24S.CL rr 1011. 25 Klerg v. CF -d-2097 U.S 254 287 (1970;.268.2712 90
holding.
25. hfsthews V. Eldridge, supra, m 23, the high
couholding that in
less nthan t
an evdentary hearing is
somech^g
c
26. .Sec. 51-2, Milwaukee Code of ordinance+.
27. Sec 51 3(3)(a) (SK .,51-4(I)(h)•s mcorpo-
ration of arc. 51 3 results in an automatic stay,
of an msperor's authorization 1O lbold re If
nt
until the hearing before the appeals
reqursled , has heel completed.)
STATI
As to the nature and scup
lunity to challenge the prole
ordinunee in question provii
dentiary hearing before the
Enforcement and Appeals Rt
of Milwaukee? The oplloru
ally appear before such bell
The right to be represented
hold, is likewise assured.
The lessor may present hi
and witnesses to show why
ing would not be justified or
If this right to present ev
include the right to challeng
the building inspector as to
building code violations, on
posed rent withholding is
would see a question as u
sufficiency of procedural sl
However we construe the
de novo-tyfe hearing, with
spectai required to establisl
building code violations on
to withhold rent payment
With the burden of proof
inspector as moving party
lessor or
to challenge I
proposed rent withholding,
foir claim that the hearing
stitutionally inadequate.
Following the hearing,
affirm, reverse or modify
rization to withhold rent a
nation of the building inspe
ing ocide violation exists°
is required as to -every
hoards Authority for the
the board's decision to tilt
provided." Finally, it is t
maximum impartiality it
28. .Sec. 51-3(3)(b). (within
of a request for a hearing it
ume and place for the he
lessor written notice then
must be commenced within
a Filung of the request for U
he postponed where the h
grind cause for,sueh adjoin
26. Sec 51-4(4), through
sec. 51-3 procedures.
� � v
STATE EX BEL MICHALEK v. I. CRAND Wis. 511
rlir a 253 N.w sot ws
As ter the nature and scope of the oppor-
lunity to challenge the pn,pOsed action, the
Ordinance in question pervades for an evi-
dentiar a the )JOLISing tial,.
F;afar � •• � Ruard of L c ,I
o Mil eu?s The opportunity to person.
ally appear ore such board is aaaUred."
The right to be represented by counsel, we
hold, is likewise assured.
The lessor may present his own evidence
and witnesses to show why rent wil(lhold.
ing would not be justified under sec. 51-4."
If this ri •hl to present as•idenn• did not
inc Ode the n� n c ;� �ni�e c to tot¢ o
t e bulldin vanretnrys in the-ougVare of
}s lin • c d • dnlnti..�. w•hi.h the pro-
osraed rent withholding is totlomed. we
would see a uestion as to constitutional
sufficirncy �I +irorel sot ,.guar s.
However we construe the hearing to be a
Ae mvo-tvfe hearing - Inc in-
W4� t rrreauired to establish the fact of the
LiljLling rode violations on which the right
to withhold rent paymenU ie predicate .
With the burden of prop on the
inspector as moving party, and with the
lessor entitled to challenge the basis for the
proposed rent withholding, we find no basis
for claim that the hearing afforded is con-
stitutionally inadequate.
Following the hearing, the board may
affirm, reverse or modify lath the autho-
rimtion to withhold rent and the determi-
nation of the building inspa:cl it that a hous-
ing code violation exisbaP A tjijA record
is required as to .every , meeting of. the
board." Authority for the lessor to hp)eal
the board's decision to the circuit court is
provided." Finally, it is W be noted that
maximum impartiality in the decision -
28. 'See. 51-3(3)(b). (Within ten days of receipt
of a request for a hearing the board must set a
time and place for the hearing and give the
lessor written notice thereof. This hearing
must be commenced within 30 days of the date
of filing of the request for the hearing, but may
be postponed where the lessor has provided'
gad cause for such adjournment.)
29. Sec. 51-1(1), through its Incorporation of
ac. 51-3 procedures.
reaching hearing is pruvidcd by the require-
ment that: "No memler of the Board shall
participate in any heuringa or vote on any
appeal in which he has a direct or indirect
financial interest, or is engaged as a con.
tractor, or is engaged in the preparation of
plans and specifications, or in which he has
any personal ipu:rut."u
With these procedural safeguards going
beyond the rtquiremenLv of tfathews v. El-
dridge, supra, and, in fact, meeting the
higher requirements of Goldberg v. Kelly,
supra, probably not here mandated in foto,
we hold the ordinance as drafted ensures
that no landlord or leatsor will be deprived
of his property interests without a full'op-
)a,rtunity to challenge the proposed rent
.withholding action before it is undertaken.
No basis for claim of denial of due process
therefore exists. Summarizing what is
:dove set forth, we find no basis for any
_t aims of constitutional infirmity relating to
sec. 51 4, Milwaukee Gale of Ordinances,
-anti accordingly hold the ordinance to be
constitutionally antiseptic.
Order reversed and cause remanded for
further proceedings consistent with this
Opinion.
o S unuaeusnua
f
30. Sec. 51-3(3)(b), providing that at the hear
ing prinioner "shall be given an opportunity to
be heard and to show cause why such notice
should be modified or withdrawn."
31. Sec. 51-3(1) and sec. 51-4(I)(b).
32. Sec. 51-3(2)(c) s. ,
11. Sec. 51-3(5)(b).
34. Sec. 51-3(2)(e) 2.
rr•`
298 N. .1 JOS ATLANTIC REPORTER, 2d SERIES
I, r, it;ln/P Ilii (t'1,9111', in :Il ra .....11, n: a
ur,J Ino ;uLIIlum;ll dullal Input 1t, rymp
of di,aJl,Inl.n;rd rhddrl'o (mIhr
rd:oeiinnal rnppnrtuun V. \nl du III' ,.iv
th:u if Ihr Stele a"Illo•, d+r rn•t of lilt,
ulbog lbe run.4tminnalll mannard ..dura
fell,, It Illay not with.., i/C local 14H'I' rlllllt•III
to gn futlhcr and m Uls In ,hal hu'Ihrl
call, provided that Stich mnhnrir.ttiun doe,
nut become a drvicc fur dihuing the
Stoic's mandated responsibility.
126.271 The pec„•ut sy,lrnt print: uo
r,nl'titlmional, we conte In tllc ,uhjl cl of
nnulhr,. We :lgrrl with the 111:0 court
Ih:o rrht-f nuns he prn,prrlice. Thr julli
,: :it l rennin wn:n'rI Illy fiwal'kr ill. Oh
Ir::lino, iururrell nnl,l not Lr imprircd.
, ill l gu cc rloocui uuni go un, :,nut
won' Pct loll of Iin+c will he ncedrd lu c.,
Ialililll :+mdhl•1' \I;lthInr% '\''arm,
tell, larca0er incurred Pur,uMlt it. vsisf-
w; ,lamnc, will Ile cand in arc,wlmo'e
•.I!h Ihr p'nu, of Ih,• statote,. fn other
,•-lied, Ise desire Ihr fullhrr viell, n( Ihr
partic, as lu lilt- cuutrnt of the judgment,
iocludiug argimunt a, lu whrlher the judi
ciaty may, as Ihr trial court did with rc.
SI -vet to Ihr "nlinnnum support aid” Alin
the ;,%C-Irinnlcec provision of the 1910
Act, IIS \.).Super. at 2RI1-I8I, 287 A.2d
IS,,, order that mn o.s appropriated by the
Lvgisl:dnrc to implenlcul the 1970 Act shall
he distributed upon terms other than Ihr
It gislated ones. ,A short date for argument
w til he fixed.
?'.l l,jrcl in this modification, expresscd in
;h:•. n}i•:fol! and the matters rc,rrs'ed in
tl,c pr(ccdmg Paragraph, tilt- judgment of
:.`.,'trial color is affiroled.
For .affirmance and modification: Chief
lu,tice \1EINTRAUB, Justices JACOBS,
IIALL, MOUNTAIN and SULLIVAN,
and fudges CO\FORD and LEWIS-7.
I'ur it:%crs:d: None.
IL Se.• I: u, I'. \'i, bol+, li^_ FJd 11:41 p1
I'ir. 19731• %0.ere if ono if divided lllunl
%'Editor equal pool ort int, requirhl Ilial
Irl. N.'L :ql
John 1 . INGANAMORT of al., Plaintiffs.
Appellants,
V.
BOROUGH OF FORT LEE et at.,
Defendants -Respondents.
FORT LEE HOMEOWNERS ASSOCIATION
OPPOSED TO RENT CONTROL,
Plaintiffs -Appellants,
V.
BOROUGH OF FORT LEE et it..
Defe n da n ls-Respondents.
CONTINENTAL GARDENS, INC., el Al.,
Plalntlffs•Appellants,
Y.
BOROUGH OF RIVER EDGE of al.,
Defendants -Respondents.
Justin G. HARRIS and Stephen Shllowltr,
Executors, etc., Plaintiffs-Rospondonts,
V.
MAYDR, etc., TOWNSHIP OF NORTH
BERGEN et al., Defendants.
Appellants.
Suprrnu• (bolt or Nev, .Jowl.
Atgord .Hardt G mud f, 1973.
I veldod April 1, 1117:1.
Appeal front judgments of tic Supe-
rior Court, Law Division, 120 N. Super.
286, 293 A.2d 720, upholding rent control
ordin:mrr, in two cases and from judg-
ment of rhe Superior Court, law Division,
stril,ing dusvu rent control ordinance in all-
other
rother case Certification of appeals was
granted before consideration by Appellate
Division. The Supreme Court, Weintrauh,
C. J., held that power to control rents in a
period of critical housing need may consti-
tuliunall}' he given to municipalities, that
Optional Municipal Charter Law and stat -
o,ae 1:1,014 sprnl.iug Chloexr plod to
Ile prmided bill, Idliugunl rmnprmvntory
rdmrxliml in Ill.. Ruglisl: latelloge.
4, Constitution. I
Except fr
dealt will, at
vest in local
dreisc mcasul
Const.1947, Ar
5. Municipal C
Even if t
practical cone
fcrcnt or pour
meet varying
male goal on.
Arl. IV. n VI I
'In•
las
atc
lib,
it a
'it -
hat
at.
1NCANAh10RT v. BOROUGH OF FORT LEE N. 1. 299
1111 ,111 mad "a "'11
IIIc all her inng wlnuripal'tles 111 I, gishd r. 6. Ahutclpal Corporations C�57
fur III, "grnrral %,If- t" .ur of(o-cot o,
that roll, and that rserrnr of power b%
numinpahlivs is nol preempted lir hall'.1
by rra'nn of existence of ulller 51 At ete%
dealing; with subject malt(r.
holgmenl striLing; down rem coulnd
urinnuu'e reversed :mq cause remuuilled:
and judgments upholding ordinances af-
f i rmrd.
Confurd, 1'. J. A. D., Temporarily :h
signed, dissented and filed opinion.
I. Munlcipal Corporations 0599
I look rule rnlbodles principle that pm
lice puwvr of State may be vcst(d in loco
gn%enunrut to ro:lllc loci government to
discharge its role as on arm or agency of
the Stale and to meet other lived., of corn.
munily. Const.1947, Art. IV, § VII, par.
1
2. Municipal Corporations C G4
\honer ,;late :door r.hoold art of
sll o ld leave initialler :mil s"Illhou to local
government rests in legislative dlsrrcttou.
Const.1947, Art. IV, § VI I, par. 11.
3. Constitutional Law C=630)
There is a limitation upon delegation
of police power to local government inas-
much as sonic Inalters most be dealt %vith
at State level. Const.1947, Art. IV, § VII,
par. ll.
4. Constitutional Law (763(1)
Except for such matters as must be
dealt with at Stale level, I.cgislaturc may
vest in local government police po%ver to
devise measures tailored to local scene.
Const.1917, Art. IV. § VII, par. 11.
5. Municipal Corporations C=592(I)
Even if evil is of statewide eollceru,
practical consirlrratlons may %vnrraut dif-
icn'nt or more detailed Im'.11 treatment Io
.... .'t r:ryioj: vgndiliols or to achieve IIlli-
v..b peal m,.r,� v feeticrly. Cuns1.1947,
\r. IV, § VII, parr I I
It I+ of no constitutional moment that
I11r.J den.ions will mean diccnity of
treat.
in, %%Ilhlll State; dl%'cr,lly is an inevita-
hlr incident of home rude, for home rude
rv�1: to permit each municipality to act or
not to an or to act in a way it believes
%vdl best nu•cl local need. Const•19.17, Art.
IV,§ V11, pa r. IL
7. Municipal Corporations 0590
Legislature may %est police power in
local government in several ways: (1) it
may grant power without any restriction
by %ray of stated standards for its rsereisr,
or (2) it may limit grant by specifying
Itandatda, or (3) it may itself fashion it
detailed treatment of a subject and leave it
to local government (or to local electorate)
to choose %vhcther statute shall operate
%cithin its borders. Const.1947, Art. IV,
VII, par. 11.
0. ConStlttrtlonal Law C=70.1(G)
Whether police power to deal with a
subject should be granted without rc•slric-
non lir should he tethered in one way or
another is for Legislature alone to say;
there is nn principle under which the judi-
ciary may insist open one technique rather
than another with respect to any topic
which may Ire constitutionally left to local
decision. L'onsL1947, Art. IV, § VII, par.
IL
9. Constitutional Law C=93(1)
Constitutional limitation with respect
to matters which require statewide uni-
tormity is equally applicable no matter
which technique of delegation l.egislature
may choose. Const.1947, Art. IV, § Vll,
par. 11.
to. Constltutlonal Law 063(2)
Doctrine which forbids delc;:anion to
municipalrtu's of power to chart in ordi-
nance upon sIlhjerl of wills and of descent
and dislriholion would rgnally lelr I.cgisla-
tslrc from leaving it to sv%vral nuulicipali-
lie% to say whether St:uc• r.lalules ur"ll
o>�
300 '1'- -1- 303 ATLANTIC REPORTER. 2d SERIES
Illus wlgrctt slcll Le operative (ulhm
Ibcir Lrndrn l'nns1.191i, :\tt. IV, C VII.
pate II.
11. Constitutional Low (763(2)
Power ur control rents in a period of
critical housing need may cu"titutinnnlly
Ile given to municipalilirs. Colst.1417,
Art. IV. § VII, par. 11.
12. hlunlclpal Corporations 459
Provision of Constitution that powers
of nnnllcipal corporations shall inchlde not
Only those granted in espres, term, Lot
also the.c of nccestary or fair implicat inn
and incnntistent with or prohiltited Iq• Cun-
stitutiuu or by law reflects a need that In.
cal gmtrtuoent Le crptipped to deal with
nmtlrrs of local concern which, if left to
Slate action, might not Lc not expcditioui-
Iv or at all. Const.1947, Art. IV, § VII,
par. 11.
13. Constltullonai Law (763(1)
It is filling m take an etpalmvc vices
of powers which nay Lc nnistitulionally
given to meal goveril inasmuch as
Legislature is free In supersede local ordi-
,lances if it thinks it advisable to do so.
Const.1977, Art. IV, § VII, par. I1.
14. Landlord and Tenant (7200.10
Optional Alnnicipal Charn•r Law con-
fers upon municipalilirs power to deal with
a critical housing need by adopting rent
control ordinances. N.J.S.A. 40:69A-30.
15. Landlord and Tenant (7200.10
Statute authorizing municipalities to
legislate for the "general welfare" confers
Open municipalities power to deal with a
critical housing need by adopting rent con-
trol ordinances. N.J.S.A. 40:48-2.
16. hill Corporations C-592(1)
1•.sercise of police power vested in mu-
nicipalities by statute I" control rents at a
period of critical hmising nred is not
preempted or barred by reason of existence
of other st totes dealing will' subject real -
I `.
loo. N. I. ti. .\. if) IS 2. 40 (MA -30; Lams
c. 146.
17, Municipal Corpnrallons c7592(I)
?tatanrc draling grnct':dl) with rola.
tonnlop of landlord and tenant, including
,taunr, rr4:uing to eviction, do not Lar mm
mcipel exercise of poser to control rents
Ili a period of critical housing need, not.
withsLuulirlg that control of rents affects
exorcise of right to contract with respect
ill property, inasmuch as statutes do not
dealenh evil at hand, namely, a housing
shortage and txnlcomitnit overreaching of
tcoalll,, ;old right to contract is subject to
police power, and no less No whci. police
puwcr is exerted at municipal level. N.J.
40:69A-30.
18. hturdcipal Corporations (7592(1)
Tact that rent control ordinance im-
poses restraints which Slate bow• docs not,
dors not spell (jilt a conflict LcN%cen Slate
;Ill b,al law; on the contrary, a6senee of
:l statutory restraint is tin• very occasion
for mmllicipal initiative, inasmuch as police
puwcr is vrsled in local government to
very end that right of properly may be re-
strained when it ought to he because of a
sufficient local need. N.J.S.A. 40:48-2,
40:62\-30.
Arthur J. Sills, Newark, for appellants
Inganamort and others (Clive S. Cummis,
%cwark, on the brief; Sills, Deck, Cum-
mis, Rodin & Tischman, Newark, attor-
neys).
Gerald D. Monaghan, Englewood Cliffs,
for respondents Port Lee and others (Wil-
liam V. Breslin, ringlewood Cliffs, an the
brief: lireslin & Monaghan, P.nglewood
Cliffs, attorneys).
Richard P.. Illumberg, Newark, for ami-
cus curiae New Jersey Tenants' Organira-
tion (\V. r)omis Keating, Allan David Ilcs-
kin, Ilcrkelcy, Cal.. and Carl S. Bisgxier,
Camden, on the brief and of counsel; Rich-
arJ li.. Itiumbcrg, Nrwark, rind John ll.
Atlas, attorneys).
\Vo mutt
.ice of the
trapp(,1 In
fhr judgt
lnntiuu< in
chaliet
aJ is>uc
c.acd to t
I _-
INGANAMORT V. BOROUGH OF FORT LEE N.J. 301
coni. am A Cd 211.
^hrpp,lld A. Ir11)':111, N'„ail„ fur apprl po.%,r1 h, deal %,nh the roil of nloldinAl.
,el- 1'oun n, 1,1A I::u do,1s :md whrrs and 11-111 :Irl\In„ w1 u(a hou+ing ahurlagr.
,.pew lour, Item, and or h, Is ILa's,'I,
I a.•rr, S:,rokul A• I lnrhman, Newark. al -
'.r 111 )1I.
\rd J. I'and.r,, n, hack ell a1-: , for f1-
��•n,J, 1a Iturougb of Rl,rr I. -Ig r 011.1%,11
I; :alumuu. Ilackru,. ck,
on the I,rirf;
I'anCklan 8Ferro, Ilackcnsack, nlmr
I'%Irr >I. \Iucn1, Nurth G,'rgtn, and Jr.
.,ph V. Cldl11m• Union (:ity, for apprllmns
tla%n1-, rte., North Bergen :md others.
I,whard \\ Kniht, Wu- Il�rldgc, for
,rmci curiae New Jerse)' Iluild;, s Assocla
and others (Ihm & Rerkoa', World-
.,rldgc, attorneys).
Rohm Feldman, 3lnuny:m, filed it brief
•.n hehnlf of phlinl i I f.ilit rT Inrmrespun-
..nt Cclfcr Rvalty Associate, (Wolfberg.
Schwnrv, \111 SIr1.le & Prldnru4
. i,lav%art, altnrnC)'S).
'Ihe opinion of the I.nurt ,as deli%cred
n
WF.IN•I•IIAVII, C. J
Th, single qurstiun is whether a ntt1111ei.
patty Ilan the power to adopt a rent onn-
'rol ordin;nw,'.
it, the l�url Lre and /firer
l.dq; rocs the ordinances %%'ere upheld,
"n Nj.Super. 286, 293 A2d 720 (Law
h,,1972); in the North Berger' cast' the
,vl:nanee "as struck down. Thr decisions
upon diffolmit rradmg+ of \\'ag-
..r %. CSq of Ncnar)., 24 X.J. 467, 132 A.
-i 7'/t 11957). \\•e granted certification
.i
the appeals to the Appellate liMsoll
i urr considcratiuo there.
We nmst :usnnoe there is a critical short -
..CC of the housing coerced by the several
n•lm.otos litre involml :Ind that lenanl%,
.r.,pprd toy the fact, arc• hying exploited.
''. u' ilnigme•nts %%cru entered on pretrial
aue., m ehich this formal premise %%as
.• rhAlenged. )truce ne hale the naked
<:l bone nllethe•r Ih, police power dele-
..,!cd to Ihl'sr tnun ie•Ipa l it les inrhtdes ill
'I 11, to. .,ru thre,' e1,111tit11,•nl questions:
II) dors the State ('u11stitotion prohibit
drlrgauuu 111 mmtiripalitirs of the power to
control I, los in a period of critical housing
nerd: ( -'f if that power may he granted,
has the Lc{;i,lature dune so; and Of i(
the Mate sort Utes %e -ting Polies ro%%cr it
C]1'rcla,'
or
suhjcctm:mc,. These arc the ,lune qucs-
11'.11% presented in Wagner, stop, 24 N.J.
467, 132 :\2d 794, which struck down a
rent control ordinance adopted try the Oily
of Xcvark.
In III, P,r11 /-cc and River IiJyr cases
thv trill ronrI read I1'nyurr to turn upon
the thin) question, that is, the existence at
that lilac o A .,tale Statnte drilling %%Id1
runt control and preempting the s11hject,
and there hying no such st:nute Inda% the
Cuw't found that IPnyurr' did Mt bar 11111•
nwipal legisl:oion, In Korth Hrryrn the
trial court read Illogner to hold there was
tun grant of power to mmllieipalilics to deal
will, the subject. At the argument before
Its. coumrl could not agree as to %%hich of
the three legal propositions was pieutal in
I I'o!/ni r.
\\'c will consider the three questions in
the stated order.
11,21 hent% rode is basic in our gov.
ernment. It embodies the principle that
the: police power of the State may be in.
vested in local government to enable local
government to discharge its role as an arm
or agency of the State and to meet other
needs of the community. Merger, County
v. fort of New Yurk Authority, 32 N.J.
303, ,il_'-.ibl, VA A.2d SII (19(!1): 56
.\111.1111 2d, \llmicipal Corporation,, 2.1,
pp. s7 -BS. Whether the State alrnlc shotdd
act or .6ould leave the initildi%e and the
I; �
302 N.•I. 03 ATIANTIC REPORTER, 211 SP.RIL'S
sulul it'll to Iucal go%ruournl, Iv,k o I,rg1.
la Il%1• dl sr 1, tit'fi.
131 Thclr i. a Innilalivu uuvu th, I'
t'r IU dt4eg.1I P. .\+ II 'e Qll rl pnitll l'J gill,
.unte matter, most he dcah with al_
Stns level. 21 N.J, ;it 47.8 179, 1.32 A.
24 71A. For es:nnple, the law of wills or
the la%% of lc%ernl mud dlslrihulioo mal
not III. left to local duci+ion. Nor coldd lhv
Star ca c.• t to rack muuiripalily o, +ay
%%hat shall constitute rul.hery lir whether if
.hall he pwlishrd. The reason is to ideal.
,The nrcd+ with respect to those mAtt r+
do nal %;.IV locally it' Ihrir nature or in
tensity. Municipal action would out hr
u+eful, ;mel Indeed diverse local decisions
e,odd be mi,chic%uuc or vveo inlolerhle."
Sommer v. Tcancck, 53 S.J. 545, 553. 151
:\.?d 761, 763 (1969).
14,51 1411 except fol such subjects, the
I . gi+launc may inwc+l of local gn%rrmnrnt
ole police power In devix• fit( - a ores tai
Ion•d to tin lural scroc. 'I fir Legislatm'v
nlay deride to do •.o for sundr{ rv.unns. A
problem ❑say exist in sous monicipalilirs
and be trivial or uoncaislrnt ill others.
:1 nd if the evil is (if stalc%%ide roovern,
sill practir:d considerations may warrant
different or more detailed lural treatment
to meet %:vying conditions lir In achieve
the rhinlate goad nmre cffcc6vcll. Thus
in holding that a nuulicip:lity may deal
with racial "blockbuming" nomithslandiug
the constitutional limitntiun upon the Bele.
gation of the police power, we said in
Summcr v. Tcomck, rupee, 53 N.J. at 533,
151 A,2d at 764:
Illockhiming depends very
much upon the loe:d %ceov and varies ;Ic-
curdingly in its intoi,.;ty and hurt. Al.
though the evil warrants the concent of
the Stale itself, it would col he inappro.
�IX,�Ct[,U571r,.pf priate to permit the monicipalitics also to
d u rt•slly with it. 'Ihrrc is uu innvuable
field for a single simewitle solution of
lug ;1 timg�i statcu iJc cii (orctng dmhuri
tom. On tits cunlrary, it may he useful to
Ill rnlit moot •iprllie+ to rel or u•......
nearer the scene, they are more likely if,
d. I.•.I am amylin• :cul ur.1y LI.c butter sit.
^recd to dreis.• � ..fu.r._�. , , t,ulr�pa
nA JanbhIn,. Theo, lou, municipalities
111.1% to witlu cu L.rcewenl oersonuel the
�l Ir +
I � .�_14,t' •d ill , 1 • m
,le nu-
burs andhence be able to nit, an offer•
life movement with which a Stale a e
volved in T%
Purinau, m(
and with iv -
ow uphold i•
16 N.J. 5101.
' 9 n.
[8-10J v
Cy could not deal limit after the event,
deal with a
(G1 And it is of no constitutional rno•
out re,tricto
way or anntl
mcnt that lural decisions will mean diversi.
W,
ty of treatment within lilt State. Divcrsi•
to say.
which the i
q• in :m ine•cilablc incident of home rule,
technique rat
for home rule exists to peen it each mucic-
ipality to aet or not to act or to act in a
to any topic
left to local
%say it helieves will hest mutt the local
tional limit'
nerd. West Morris Regional Board of Ed-
fiction v. Sills, 5S N.J. 4071, 477, 279 A.2d
respect to n'
uniformity i
609 (1971), cert. denied, 401 U.S. 986, 92
which te•ehu'
4511, 30 1_1:1.2d.170 (1971); Two
ch
Guys from Harrison, Inc. c. Furman, 32
eve may
X.J. 19'1, 131-232, 160 A.2d 265 (1960);
fur again to
scent arae eh
anwoocau c. !larncr, 16 N.J. 500. 517-
forbids the
5'I• 1110 A.2d 640 (1'154), cert. denied, 349
the power
1241 (1955);
those subje.-
In n• Cleveland, 51 N.J.L. ISv, 190-191, 19
laulrc from
A. 17, 111 A. 317 (I!. & :\.1889): Patel e'
:palities to
Gkmcester Cooney, 50 N.J.L. 585, 603409,
upon tho+c
15 A. 271 (H. & A.1888),
within their
.tnves{me�t� ap
171 And the Legislature may invest the
f
police power in local government in several
[11j If t
u ays. It map grant rynccr without any re �
then the I:.
q
slrictiun be %vas' n( stated sea nrla rds for iii !
can (rave re
ect� ,rrisv. Board of Health, Weehawken v.
decided in i
New York Central R. R. Co., 4 N.J. 293,
lamouneau
300-301• 72 A.2d 511 (1950). This of
IW A.2d 64
enerse is the usual formal. Or the Lcgis- ,
it, terms he,
laturc may limit Icmot h • s scif m •
pality its w9
__-��-•'—�adot
>CuularJs a it did in the cast of ronin Z 1
1' a res,
,
(t c nnstlut ion itself contains some ,
Irousio;; spa
standards with respect to dclegatinn of that 1
rent contr.d
power, Art. IV, § 6, f 2). Or the Legisla- !
t+ for the
tore neap itself fashion a detailed treatment , !
r.c!:ilcd
of a +ubjecl, and lave it to local go'ml- I
mcipahry'
nu•nl (fir to the local elcromate) to choose
618). A p:1
%%holier Ihr stalote shall operate within its t
rantrrll and
bonier,. See In re Clceeland, supra, 51 3
This proccdr
X.J.L. at 190, 19 A. 17, 20 A. 317, This '
i
cal \I;ly n( .
alppioach was used, for example, %viae re-
tit need of I
sped to Sunday dosing in the statute in.
Ij{
rtate•wide t
IN(IANAMORT v. BOROlialf OF FORT LEE N. J. 303
ru,•,,. aur .\ :•n :•:,'.
.,,I\cd w'I"w„ lily•. flnn. Hill n•.nu, Inv. \ luau Ihr aticod.wl mks of going lieynud
mmau..wpnt, .112 NJ loo, ItAI ,\ Ld 26:•, Illi Iea... liable limits of Itse pnat•r" (16 N.
.end with respe' l In I, III omlrul io Ihr elal I ;o •C, III') A.AI at 64o).
me upheld in Janouurut \'. I farocl, shpt".
16 N.J. 5191, It9 A.2d 6ff1.
18-101 \\'helper the police power to
deal with a subject should Le granted with
out reetrictiun no should Lc tethered in one
tvay or :mother is for the I.rgislaurre alone
nl sap. \\'c know of no principle under
\,hich the jmliciary may insist upon one
technique rather thou. another with respect
to any topic which lily cons[ it utimrbly he
Icft In local decision And tile- c(-n.Iitu-
uonal Itmitatinu we Mentioned Carlin with
respect to mallets which require statewide
uniformity is equably applical le mn matter
\,),tell tech..Lply of delegallnn till I.egisla
Lure may Choose. So, for rsample, In le
frr again to the subject of wills ;out of (h'
scent and distrihutiu)• the dol-Dinc %%hich
forbids the dclegarinn ul nttutici pathics of
the poster to enact an ordinance upon
those subjects would equally har the Legis
latut'e from leaving it to the several ionic
;palilics hl say whether lite Stale stalutcs
upml those subjects shall be operllivc
within their I ... rdrI S.
jllj If the forel:oing views au'e Corte, I,
1111,11 til, gresfion whether the Legislalurc
can leave rent control to local derision was
decided in favor of the power to do so in
lamntmean v. Harrier, supra, 16 N.J. 51X1,
UR A.?d 6411. There the Stat( statule by
.is terms 6coonc •coperative in any mmtici.
p; my in which tilt governing body shall
adopt a resolution reciting that there is a
housing space shortage therein and that
rent control is requiredin such municipal),
tit for the protection, safety, health and
gcncrl welfare of the people of such mo-
mrip,dit," 116 N.J. at W, 109 A.2d at
64R). A parallel provision (listed for de.
cnolrul and recnnr»I, 'chis Court decolcd
;hes procedure "Io be an cmioeolly prnrti
•.,I way of rn,
\rilo: Ihr arras of lite State
.�. need of rent control, :old Ilius to acrid
tane wlite cnolrul in ,sells of the sled
'Ilm gnestiun whether Illayner held lite
Ligislaturc could not constitutionally dele-
C.oc In municipalitie, the power to deal
„nil this subject matter arises because
II'uyuer referred it, the preposition than
some matters, such as \,ills and inherit-
ance, are rxclosivdy for statewide legisla-
tve decision. But Ilrnyner did not say the
Cneslil tloll places file wLject of rent con-
trul ill that ambit. Father, \\ilhoul slating
All e\plicil view upon Ih.lt subject, IPayo,•r
w(ot out to say that ••\lureuver, legislative
history since the iniepti�m of fee oral rue
Iluls aflcr the hegnming o or ar
shows it clear recognition t tat rent ,omen
\\..s not a matter wnhol the ream of mu•
nicipal power teltmud ex Irss ail Ionfy_
r,un
the Jla1r, „J�•fr9, 132 A.2d
al sI) (I•:mpha:Is is ours 1.
The words we have lust italicized repel
the idea that IPayurr, notion the Legisla-
ture could not delegate lu local go%ernment
file power to deal with csploitation of a
housing shortage. It is notable, loo, that
II'ng ter did not cite lir distinguish or over.
rule /nluno neat, nlpru, 16 N.J. 500, 109 A.
2d 681, which, as we have said, held that
not Control may be left to local decision,
there by the device of local option.
hldeed, IVnynrr stated as its final point
lot the City of Newark rould act only un-
der the leans of chapter 116 of the Lases
of 19;6. That statnua'In ill\uh•ed the
t rani s • that 1,c It cgnl`-I Could he left to
local decision. A number of municipalities,
nam rtlit "Ctlell 1.1 of that statule. New-
ark being one of them, hod p(litinucd un-
der Art. IV, § i, r 10, of the State Const i.
union for a special or Int::d statute au
lime-
wing the edpplion of an ordinance w ith r,-
specl to rem control. In response the Let.
i slautre enacted chaplet 146 antborizing
such ordinances, which st tote, by its terms,
o.., ioup.reli\e in any numieipahtp unlres
the %taupe wa. adoplcd Ly its ginerning
Iamly, § 15, 9'luc, chapler 116 Ildegaftd
W
i' iPptj.
(� f
0 0
801 S..I. 303 ATLANTIC REPORTER, 2d SERIES
the power lu lural Kok, runn'ul and Wag", I
dycnled the delegation to Iw cuhd.l
II Il ognvr u0cudrd b, s.q IVIII vont vol
mu\ not Lc left to lural gucrnnneut, Ilhrq
n;r would Le smgul.11, Citws ehrw here
ouanimoosly rrcognizr Ih,n the power ma\'
Ile invested in local gmer nient. Ser QA
hvd:. % C_ i� of UWjij 5111 20.5 M.I. 203. Illi
A pp. 195.1); "pccval Co I*
5u_r,6 .1111 N.Y. 316, 91
.\pp.lq.;O), vert. denied, .310 C.S. 576, 71
S.Ct. 121, 93 I -Ed. 6.37 (195(1); LI: I'.
('o. v. l 11) Rent and Reel;Jnlilatinu Adutiu.
i+lratiuu, II N."17T "F2:3f1 X.1'.S.2d 9Y.,
184 ,1.{62.1 575 tCt.App.1962)/ l Illlth',
Ifolding Corp. v. Gahel, 13 X.1'.Al .3n6,
247 N.Y.S2d 97, 196 N.E.2d 5.37 ICI.App.
196,4); 8200 Reap) Corporation v. Lind
+ay. 27 NN.2d 124, 113 N.Y.5.2d 7.39, 261
N,I(?d 617 (CI.App.19711), appeal di,-
olissed, 41111 C.S. 962, 9f S.II..367, 27 1.,
I(d2d 351 ( 1970) ; jCarn'u V. Cil)' of Pillb
St•ILh:I, .352 Pa. 1N0, 115 A.2d 219 (Sup.
fa.l'/35). Decision, winch vnucluded that
Ihr I.cg"lalure had out (.1111,...: e; cd main
palltic•. In all did not suK):r,l a cuusliur
nnual impc(Imunt would stand in the wa)
if the LegisLtnro chuu to du 511, Ser Old
(;gJmJTI' I •r v ]lie v City of Stain 011J,
1,17 Conn. 61), 156 A2d 513 (Sup -Cl. of I(r-
rors 1959); AlllbascLdo Fast v City 9l
(•1'-4., Yn) III. 359, 77 N.F.2d W13 (Sup.
Ct.1948); Ch' of \iii ni Beach V. Fleft-
wood lintel, Inc., Fla., 261 So. -Id 801
! (Sup.Ct.1972); Ticlien+ v. City of SI.
Louis, .359 Mo. 439, 222 S.\\'?d 70 (Sop.
Ct.1949); cf. -Marshal house, Inc. v. Rem
Review and Grievance ]fear(] of Brookline.
.337 mass. 709, 20) NX -2d 200 (Sup.fud.
Ct. 1970). That rent control may he left
with local t an ,rr etc d orov.
/ sition in 7 %[cQuillin, Municipal Corpora-
" `3 tions (9th rel. 1968), § 24.363[1, pp. 613.411.
2 y. SC34
P418-04,I 1. .peva l drarrihrJ rho ptt'r 14rf ns n
1 � T "oprrial nrl;' nv inderJ it I'll rI'urtrvl In
hr, In n Inter rase, in which it wan
rininwd Ihr ramxl it tit iunal Inoev,lu a for
the elmrl uunll of n *Iwdul law Inn] mol
hven tort, it wnr Iold that -halter Illi
-told hr ousinlnrd no It "gen cut" Inv.
In n• Frryrang, •111, S.J.qulwr. 11. ):Cf
@I`—
,oil n, hht u,, xintoc Gral I.a\n (19.57), p.
llutc also that the President's
I� nmoou- tiuiolization Regulations Whas-
rs I, II au,I III) rivaling with rent con.
Irdlcd amts cyncssfy refer to "the lases or
I guldtinne of It Slate or tunrt gorenunent,
of ;to .,gel,) or instrumentality thereof"
(cnlphasly i. ours), 6 C.F.R. § 301.103
1197.'), thus accepting local action is part
of the seen-.
112,13) If than• were doulJ as to
w hrlh-r this power could cmtslinnionally
Lc ue%,%,ed in local government, it would
In rclvtant to add that Art. IV, § 7, ¶ II,
pruv ides:
'He. provisions of this Con'titution
:uul of :til) kitty concerning municipal
rorpm:d inns formed for local govern-
ment, or rotverning counties, shall he
IiL,'l ally rou,ttoed in their fa%or, i_hf
pnt__cl
of c nail e, all .nth -til ci0al
cm pan annus shall include not only those
er.un,d m express lrnus lint :its(, those
of Twev"'lly III' Inll' Illi hllr.l
0,, Ill Ile powers l\ re
��
ur cs.euual �trrrin, and 11111
\\'ll 1 nl urn 11 alt'( r7 t 115 I:
This nM of construction reflects a need
we teferrel to ahuve, that local govern-
ment i.e equipped Io deal \cilli matters of
local concern which, if left to Stine action,
might not Lr meat csprditinnsly or at all.
It is well to keep in mind that ouIr legisla-
tors are elected from districts rather than
at large. This is a source of strength, lint
it holds the tvrakncss that a localized prop.
Ira is h." apt than a general one to invite
prompt action at the State Irvel. It is fit-
ting. therefore, to take an expansive view
of 6u• potters which may const inn iouall)'
.\._d G72 (AI -1-M1 .19371, affiuncd, 3:,
$..I, T7. IT; A.2l G9n (1957). It'll
whether rhapl.-r 1411 vnr o sprrinl Intl'
er a e,urlul law is nil sigoifur-Ju here.
I.11, ndrnwt fart i+ thnl chapter Hit
J,4rgaled Ihr Joiner to Iurlll cnrernmrnt.
owl II'naurr te,uual Ilio delegation to he
cnlid
hr given to
lance of Coll
lord ordinal
to do so.
It is pecti
with rent :d
icct tells us
federal attic
cision. Tha
cral or loc.,!
&-control tri
wherein th_
the State go
Crnment wi
flencc tit
lie' may Cr
act in thi-
N� whether o,
grant that
�' the coa;:it
A0 Art. INI-1
_,y 1
One aa+
(rte" uon:d >I'r-
Thu le
comaire
confer t
govcrun
tion of '
allOtl O'
this act
not he 4
general
in this
'� euumv:
i con>tn:
tar) w
1 term' t
1 ac;;.a:
by a:.
t\ h, :h,.
mein ,
i0tlitf\
tion of
i;alit)'
;a
INOANAMORT v. 1f01toUUll 01' 1'OR,r LEE N. d. 305
t
rut' L. aIn
s :•a r:,,
Lr girrn to kgml l;nceninu•ut. Thr Lego-
11.11 If ere ;Iry currrcl in the View we
lawn of courx wrndd be fire Io supclscdc
ecprl••.scd in Non I that the power to deal
local ordinances if it thought it advisable•
.,oh a rental emergency may constitulion-
ol do so.
all) he given to municipalities, we sec no
esrgre from the proposition that the stat -
II is peculiarly apprupri;nc Ilms in lea
lilt just quoted is sufficient to that end.
.lith rent .rhusr. The history of the sit
\\ a understand that none of the municipal-
1,cl iells it, that the prohlrnl may Call fur
itu.. in the maters now Lcforc its arc gov-
iederal action, or ,*late action, or local dc-
ens,l h)the Optional Municipal Charter
u.iuu. 7llat the pruldcrn may thus be gin-
I.;tw. We will in a moment refer to the
,Fill or local is trident frnul the process of
gencrll statute which relates to them. We
.I.,ontrol will, n•spect lu pion enu•rgencics
speak of N.J.S.A. -10:69A.30 because it
%,her -Ili lilt fcdcral government ;old then
evils involved in II'agner and that fact
:10 talc goveronlrnt and finally Inca gov•
[,cars upon the question whether Ilragner
nlmvnt withdrew as the evil dissipated.
tonal on the lack of a ,tatutory rmthori-
tnnun or upon the final point, that the-
II
Newark ordimmct eonfhctcd with ;I then
relating statute dealing with the specific
11CIIrt %%C do not doubt that IIIIIIIicipall
Subject of tell[ control. \\rt' appreciate
I", may constitutionally hr empowered In
be read , say that the
that Wagner can u
;1,1 in this arca. The nest goention is
subject of rent control is he)'mld the gener-
whnlllrr our sC linc, should Lc read to
al Brut of the qunted staunc, lout if so, we
grant Ihod power. c,pecially in the light of
duolot adhere to that Vice. If it is ac -
do. constitutitnlal rule of construction in
cepted that the power to deal with the suh-
\rt. I\', S i, !1 11, gnlard al,uve.
jtc: may he girrn to Incl government. we
s r no basis anon which Ili, -judiciary can
Tan sLd uk's aerc involved in 114lgnty.
pliu
out that esntentio "rum the
I)llc was N.J.S.A. 40 499.30 of IIIc•
price
the
prcsnl Icgislaticc intention "tri [older the
bond Municipal Ch;utcr Law which rear%:
•nsdrsl power o eta st-guvcnuncnt
• uan o t ns
1 Hm
'file genera grant of municipal power
contained in this article is intended to
under the greatest power of local self-
govcnunrnt comi+tan with ill(' Conslidr
tion of this State. .\ny specific cnumer
:lion of municipal powers contained in
this act or in any other general law shall
not be eonstnu'd in any way' to limit the
general description of power contaiucd
in this article, and any such specifically
rmmncraled municipal powers shall by
construed as in addition and supplemcn
tar)) m the powers conferred in general
terms by this article. AP grants of tilt,
nicipal power to tunnivip;ditiCS' gnvenlcd
L. all upwn
It 111.01 under this ;I(l,
w Ipih,r in the form of specifir counter.
:Ilion or grllvl'al terns, :•hall Ire llhcrall)
•,n%tratd, as rnpured h) the Cmisbuo
.a of this .c'tat:, in b'nor of the murk.
,C_>.
comotcnt wt t c ons
Stats „
The other statwc involved in Wagner
and involved also in the cases now before
its is N.J.S.A. 40:4-2 which reads:
All)- municipality may make, amend,
repeal and enforce such other ordi-
Winces, regulations, rules and Ir. -laws
riot contrary to Ac Lows of this state
or of the United Slates�a it may deem
necessary and proper for the gond gov-
I rnment, order and protection of persons
and property, and for the preservation
o! the .public heath, safely and welfare
of tile. unulicipahty and its inhalations,
;old as may he occewory to carry into
iicct he puwcls and dmrt•s rndcrrcd
and imposed Ly this subtitle, or by any
late.
I
i
306 N..1. 303 ATLANTIC REPORTER, 2d SERIES
llnuh h.itr y,lrt iq,nn olie[ hh n •del ul_
Ic
s/ap^/^�l`•Q„A`�,'y�• :mlhnn mug nnnurgrJ iire In i�laur fui
t
the 'rnwrd wvl bun•' u',self a wy,y,_uL
mullici uA mm.er or merchY rives •nlrililrc
)Hoer in all r.( sur••'('r •r t<. Sec gen-
erally 56 Am.Jun2d, Municipal Corpora.
tions, § 432, pp. 177-178, If such a suuutc
grants only atiOiary power, there of
course would llaec In he specific authoriza
tion to dead with housing emergencies. It
was upon that narrow reading of tilt• gem
cral stan',cs in Ambassador East, Inc. v.
City of Chicago, supra, 399 111. 359, 77 N.
1•:.21.1 803, 807, and Ticijens v. City of St.
Louis, supra, 359 %to. 439, 222 S.W.2d 70.
73, that it was found there was no muniei.
pal power to control rents in a period of
shortage.
1151 flit we evpn•ssly rejected a oar.
row view of N.J.S.A. 4f):.K-2 in Fred v.
Borough of Old 'Tappan, In N.J. 515, 92
A.2d 47.1 (1952). There an ordinance
dealing with loll rcnnrcal was assailed Ile.
rause no statutory grant of power spoke
expressly mf that subject. We held N.J.S.
A. 40:48--2 itself warranted the ordinance,
saying: (p. 520, 92 AZI p. 475):
• • ' This interpretation of R.S.
40:48--2, N.J.S.A., as an express grant of
general police powers to municipalities
has been made impregnable by the con-
tinued legislative acquiescence therein,
by the mandate of Article IV, Section
VII, paragraph 11 of the Constitution of
19.17 that acts concerning municipalities
be liberally construed, and by the adher-
ence thereto of the more recent judicial
decisions, Ricca V. Board of Commis-
sioners. 1 N.J.Super. 139, 142-14.1, 62 A.
2,1 746 (App.Div.1948); lidw•ards v.
flurough of Slnoarhhc, 3 N.J.Super, 10,
14, 65 A.2d 78 (App.Div.1949), rcrrrsed
3 N.J. 17, 68 A.2d 711 (1919); hlirhacls
v. Township Committee of Tp. of Plan.
berinn, 3 N.J.Super. 523, 527, 67 A 2d
324 (Law I)iv. 1949); City of Newark
v. Charles Realty Co. 9 N.J.Soper. 442,
457, 74 A.2d 6.10 (C'ty.(:t.1950). If more
be needed, we refer to the recent deci-
sion in Stine v. Jlundet Cork Corp., su-
pre. S N.J. 359, 369. 86 A.2d 1 (1952)
wherein we held that the !•naelment of
:fit air pollution ordinance was "a lone.
tiuh of the police power conferred on
municipalities by R.S. 40:48-2 N.J.S.A.
(originally enacted in 1917) for the pro•
tectimh of the welfare of their residents."
Plainly, therefore, R.S. 40:48-2, N.J.
S.A. most be considered as an express
grant of broad general police powers to
municipalities.
We have consistently held the statute is il-
srif a reservoir of police power. Adams
Newark Theatre Co. v. City of Newark, 22
N.J. 472, 126 A.2d 310 (1956), affirmed,
354 U.S. 931, 77 S.Ct. 1395, 1 L.Fd.2d 1533
(1957); Kennedy v. City of Newark, 29
N.J. 178, 148 A.2d 473 (1959); hloyant v.
Paramus, 30 N.J. 528, 154 A.2d 9 (1959);
Summer v. Teaneck, supra, 53 N.J. 548,
251 A.2d 761; New Jersey Builders Ass'n
v. Mayor R. Itrunswirk 'I'p., (A N.J. 222,
287 A.2d 725 (1972). We are satisfied
that N.J.S.A. 40;19-2 confers upon n music -
pahurs the power to mop ren eontro or•
i
dmances.
11
Tile final question is whether existing
statutes liar municipal exercise of the pow-
er to control rents, or perhaps to put it in
other terms, whether existing statutes bar
a finding that N.J.S.A. 40:46-2 was in-
tended to include the power to deal with
the subject.
As we mentioned earlier, the Legislature
enacted chapter 146 of the Laws of 1936
which specifically authorized rent control
ordinances in the municipalities which had
poitimncd for a special law. The mmmici•
palitics sought a suuutc to allay doubt as
to their power to act. IliitS terms eha Ire
N6 was "inoperative in any municipahl.L
until it shall I -e adopted by ordinance of
t h�occrning body of such municipality."
Sec. 18. 7 he City of Newark chose not to
adopt chapter 146 because it included a
mandate for in across-the-board rental in.
crease. Instead the City relied on the stat-
1 nt
enc.
I on
gro-
in„
N.J.
,ress
to
li Il-
luns
k, 22
med,
1533
�y
np,
:tr
i tor-
t in
liar
in-
n ith
..tar•:
-.test
had
-nici.
,t as
aptcr
e of
Vi
INGANAMORT V. BOROUGH OF PORT LF.E N.J. 307
rua a, 3113A N.
':.,
in
,,te, disrusvrll in I'wIll II abuse. II'uiple. 111its rcccrarJt and lthct nt-1ttcr remanded
held chapter 146 can+tiluled a Irgisla Gve C'r
declaration that the ,trhject matter shall be far further proceedings not inconsistent
dealt with under its provision, or not at hcrvwth.
all. 24 N.J. at-ifJl—iAl, 132 AZI 791.
I16 There oreuntlr is no elaurtc• dcal-
1 r-----_�.._ _,..
int; with reitI control and hence the tools'
Ipal toa_rr is not.l'rc_ML ctlJtS-at>S—slujt
nleasun•. Chapter Iii expuld h_c its [stns
m1 mccmllcr 31, 19;7. Sec. IA. .celyt_II
rlmtot he that when the Slate tvithdre%%
(rani IhTc_;.ca in the 1950. it Ihcrrhs�_m-
dained tl_nl the silt Vet neuter shall [herr
;,tire is the firlin ince of the Slate Le ""a-
1
1171 The mly other facet of the
Iarenlptimt i,enc i, tthclhlr III, ,latill"
deahl��;tlly teilh the rclatiunsltip of
bm11b r I nn 1 teu:art mcludill et:,wte, re-
lative u1 eviction, ehnulJ he found to hlok
here.
with the evil at hand—a
Il'n=nh<y
IIB] 'I -hat control of rent, affects the
...reise of the right to contract with re-
,itrcl to properly is uodenial-Ir- Rut the
right to contract is subje❑ u, the police
poser and no less fn when [lie police flow -
'r is exerted at municipal level. 56 Ant.
ai.2d, %lunicipal Corporation,, § 437, p.
I..t. \\'hrlhcr wt ordiva ncr relates to zoo
mc, or rottains :1 hou,nty; code, or inj
.;,rm the Ituullonl duties r0atin,i to 111-11111,
.t acrosarily Inuits the n.o of property ur
Ov right to contract with respect to it.
'That the ordinance intpo,r, restraints
[[hilt the Sole hnr does not, dues not
,pcll oat a ennflict hltacen Stale and local
!eye. On the contra:\ the ahleltee of a
qannorc re,lr ml 1s the cert oec:ninn for
m•miupal inilialwe. The police power is
rnnterl In the ve n• end
Itm the right of proplrtmay be rv,
•iraurc4 a'hrn a mlgt u lc n•c:nlsc pf a
•ufiiciem local need.
The judgrocols in Inganamort v. Port
I,•c and in Continental Gardens v. River
Madge are affirmed. In these matters eourr
,cl for plaintiffs state they did not intend
to abandon other issues and assumed the
judpuents concluded only the issue we
Marc dealt with. plaintiffs tray apply to
the trial court for (rave to pursue their
other challenges.
Por affirmance: Chief Justice \VE•IN-
TR: UB. and Justices JACOBS, PROC-
-1.0k, HALL, MOUNTAIN and SULI.I-
\1 \N--6.
Por reversal: Judge CON FORD—l.
14a reecrsal and rrnl:unlmcrlt: Chief
Jo,tice \VNINTRAUIf and Justices
JA -PROCTOR, IIALI., MOUNTAIN
:uul SI'LLIVAN-6.
Por affirmance: Judge CONPORD-1.
CONPORD, p. J. A. I)., Temporarily As-
signed (dissenting).
I would adhere to the decisions of this
court in \\'agner v. Nc.cark, 21 N.J. 467,
Jig, 132 A 2d 791 (1957), and Grofo Real-
ty (Co. v. Ita)mmc, 2.1 N.J. 132, 436. 132
A.2d 802 (1957). that municipalities do not
h:ne power to enact rent control urdi.
muter., without express authority from the
State and that the general police power
proeisinns of the [ionic Rule Act, N.J.S.A.
10:49-2, upon which ear), of the instant
municipalities relies for the pnecr, do nut
cpncry it
I agree with so nue h of the majority
opinion a, holds tort contral coostitulimt-
ally dclegal,lc by the Legisl:tare to munia-
pahtics. 1 do not agree that N.J .S•A.
P1:LS-2, properly ean,tnud in relation to
the specific subject caller hi -re of concern,
ha; in fact delegated it.
t
30S N..1. 903 ATLANTIC REPORTER, 2d SERIES
I u alct'l:uul lite limpla% cal..null, In I.,
Ellet any power wlurlt 1, run.olnllon:ll%
d •legaldr In it ItlltniS�I:ahty, ua waiter illy
cxlcnt lir which ailing with it, ](seal its_
nary it affects the anolicahihly of ge netal
IG
Is
.Ill: IN -J su-(Qllr
subject matter cannot
tTiinRs_, tr.r:
It will he helpful if I capsule the sub.
stance of my contrasting view of X.J.S.A.
410:08.2 before explaining how I arrive at
it. -Phe seeliml reads:
Any municipality stay make. +uuend.
repeal And enforce surh other ordi-
nances, regulations, rules and I,y-law>
not contrary to Ill, lawn of this stage ill
of the United $tales, as it stay deem
us ressary aunt proper for Ihr I;ood Gut
munrnl, order and piotco an of person,
and property, :rod for III,' prrxr cation n(
the public hrallh, safely and welfare of
the municipality and its iuhabilantc, nod
as may he necessary to carry into effect
the powers and dulics conferred :rod im-
posed by this subtitle, or by any law.
By its language• and sense the granted
poster is confined to subject matter con-
cerning the partietOtur "municipality and its
inhahinuus." It therefore obviously docs
not "tend to subject matter affecting gem
erl law or private rights of citizens at
large or involving state policy and concern
ars distinguished from local. The act is
simply a catch-all to pick up and delegate
appropriate aspects of local police power
which the Legislature may have ovurlookrd
in the course of its manifold delegations In
muuicipalilirs of specified regulatory line -
t r'.
llo%%mer, one finds that a broad divrrsr
ty of potential subject matter falls into
I. "Nort-sm r, Ir¢i+boirr birtoo Mune tile'
ilia .I,t inn of frdr•rd vontr„h eft er Ilit- Le•
ginning of World War 11 hiowr a r]rm
mrognilfou Ibat rent control war reel A
I.n:b categories slatvd-- matter, of local
n aurrn ❑lid tlulhr of state concern. The
vri.na here at hand, rent control, is illus.
Irt lt,. Thus, deciding which aspect of
rem,mi shall he determinative as to the
meet:,gc of the general language of the
Ilo.nr Rule Act it, a specific instance re.
quires a weighing by the court of the re-
npecdtc beat and sone concerns from ev-
en standpoint which would rationally
I mol to the putative legislative intent. I
concencc that this Court engaged in that
exercise in Ifragurr, found that the state
concerns greatly predominated, and there-
fore held the unrestrained power of rent
control was not intended Ly the Legislature
to pa.s to the municipalities automatically
by e::artman of X.J.S.A. 40:48-2. For
rca•ons which follow, 1 agree with that
ju l,"lenl.
'I It, romtructiollA issue is complicated
I.c ..nuc :rmhgplit) in the preeions deci-
worr of the Couil concerning the distinc-
tion bciwce❑ the crilet'la u( constitutional
fit I, t:abi;u"v of powers m a municipality
and file crilrtia as ill what particular pow-
ers acre in fact delegated by the general
police power provisions of tile Home Rule
Act. N.J.S.A. 4 0:44-2. Unfortunately, the
opinion in IVnynrr, supra, blurs the dis-
tinction. It contains language suggestive
of the concepts both that rent control is
not delegable, and, on the other hand, that
it is delegable hill not in fact delegated un-
der the statute because of the great pre-
dominance of its state-wide aspects over its
local aspects. 1 believe the case finally
shakes down to the latter as the controlling
rationale.'
In Ibc ;Ina of inherent note-dclrgability'
IPngnrr cites, un fhr authority of dirta in
Valli v, Gloucester County, 50 N.J.L. SR,
641-0)2, 15 A. 272 (E. & A. I949), such
sul,j(rls as the law of ejectment, altaeh-
menl :rod descant. (24 N.J. at .179, Lit A.
2,1 791). II'ogner adds the master .and
lots eull.it, tin• ..vthn of muukilml
pmt re' with lit ry prn� anrhivity pram the
s'brtr.'• IlCmpbuxlx nl,led,t 1224 X.I. at
491, 132 A.2d 701)
I 's-
IN(IANAMORT V. ROROU(;I1 OF FORT LEE N. J. 309
rwo,.:ma Ian ..as
srn:nn aunt ku'llonl :cod bv:on 'uhtliun nI Iegisl.ur on a particular subject, it dues
ships, administration of eslau etc. Ila. at or,, a useful purpose. It informs the
474, 132 A.2d 701), Thos- Olen fulloes uulguu•ni of the court as to the broad catc-
the enigntalic statement zones of relevant data which after exami-
nation and appraisal caul lead to a rational
• The broad grrnn of power letelloilla(inn as to whrther it is sensible
under U.S. 40:41,-2, tupro• and N.J.S.A I„ inqutic to the I.cgislatrtrc an intent that
40:69A 29 and 30, .mpnl, Iclxu•x lu man- I,r the generality of the language of sec-
tors of local cnnccru which may be dc- Iunt U1:44 -Z the particular area of public
termined to be nen•ssary and pngn•r for policy should be vested in unehanncicd mu -
the good :cod welfare of local inhala nicipal discretion.
lamb, and not to those matters involvin;!
state policy or in the realm of affairs of
general public interest and applicability.
It seem+ to tile that this cxprcssion.
which has r(ienlly been gamed with ap
proval in other eases involving the scope
of N.J.S.A. 40:IR 2, Sumner v. Teanrcl.,
53 N.J. 545, 552-553, 251 A.2d 761 (1940):
N. J. Ihlildcrs Astin I. MA)ur E. Itrum
Irick Tp., 60 N.J. 222, 227, 247 A.2d 725
(1972), is urn vague for usefulness as a
beuchnaric of constilutinn:l deleg:laibty as
cornroslcd with its high utility as a broad
guide for judicial determination as to
whether the Ilomr Rude Act has actually
dclegatrd a particular power or subject
matter. 'There is almost a limitless variety
of types of poser amt suhjecl matter
which have been exercised or controlled by
municipalities relating both "to matters of
local concern" and, albeit indirectly, to
matters "involving state policy" or 'affairs
of general public interest." Since delega-
bility is typically referred to in the deci-
sions solely in terns of matters not iucoly
ing private law of general 'applicability, the
foregoing ronsiderations strongly suggest
that in practically all cases of miscd Incl
amt slate concern conslilutirnrl lcicgabili•
Ic exists. Rent control is an example par
r.rrellence. But the opinion in 11"0911", as
goulyd :,bore, in setting up criteria it,
terms of local as oppo-ed to state concern
whish are nut nottu:lly exclusive, is illusn-
r if attempted to be used for testing doh
cgability per se. If, luncevrr, the II'llynce
inrr.ulaliun is used sulely as a brnad Iptide
for judicial inquiry into sdtcthcr the I-egis-
Iature intended the general language of N.
I.S.A. 40:44.2 to vest municipal amhnrit
Some of the language in Summer v.
-I'caneck, tupra, is suggestive of the ap-
prnacll 1 would lake. After quoting N.J.
S.A. 10:45-2, ,led citing the Constitution,
.\rt. IV, $ VII, par. 11, and Prod v, llaynr
and Cotmcil of Itorough of Old Tappan, 10
N.J. 515, S19-,521, 92 A.2d 473 (1952), as
authority for a conclusion of plenary grant
of broad police power to mmllicip:ditics, the
court says (53 N.J. at 552, 251 A.2d at
76.4): "Nonetheless there is an implied
lunifalian upon this pervasive grant." quot-
mg the Lmguage I have already excerpted
from Wagul,•r, supra• lay way of a quali(i•
cation of what the "grant" "relates to," i.
c.. "matters of local concern" cyte, and not
to those "involving state policy." etc.
11•mphasis addled.)
Sec alsu In re. Public Service Electric
and Gas Co., 35 N.J. 355, 371, 173 A.2d
211, 239 (1961), wherein, although the case
really went off on the point of state
preemption (local attempt to regulate man-
ner of transmission of electric power
through the nnmicipalily), the court said,
citing IPagner• that "cern where the SUIe
(,[ 1-I 11 I' x1,nF umr madLus,
inhu tl ••d n( coliform trcnlntcuL
af3 not a uronci-SII)j t f mun••insl
term" Again, while the opinion did
not expressly distinguish bcrcren eonstiru
conal dclegabilit• and delegation in fact,
its Icnor suggests to the a judicial assess
utent that while lhr subject tmnler did lit-
erally come within N.J.S.A. 10:49-2, hav-
ing obvious and serious lural implications
(rmn a health and hazard stnudpoinl, the
preponderating influruce of its state•cffecl
aspects wrighed sufficiently to currant the
0
310 N. .1 303 A'T'LANTIC IU',rt11:ITIt, 2d SERIES
n "whi.wn Ilrt Ilse I ,q;tslalnn [,d rod I
level by lhr V;e uri.d I't:ml tl. n -r ulal Inn In
uumic ipa Lti.'..
I uI I,ed ILaI the 'I.,I inn,
conslnrliunal problem i+ s,nneah:d cog
nate In that mf state preentpliun Icy iod'rev
tient 1: vidcncr of legislative intent, fur
gene rat pit rpusrs, can br b,t ld In Gnrl3.
amorphous faclled bacl,gr,nmd watered a.
.cell as in e, press stat oto r slalema'I
See (),ford Cmisuoer I)is (u. of No. Phi
-
la. v. Stefauelli, III_' \.hSuper, 30. 561-
363, 116 A.2d •101 (\pp.lov.Plos) mod.
,.[her tpnuuds, 101 N.J.Super. 712,
2l 793 I:\pp.1)iv.l969), mnd. other
grounds, ii N.I. 4811, %(it .\.2d .971 (1971)),
app. disco. 400 ITS. SIN, 92t, 91 S.G. 43.
27 I..Ed?d 35 (1970). Tlun, in Stale s.
pesky, 54 N.J. 26, 231 A.2d 7 211
where the court (mind that %anon., slat-
policies argued against numieipal power In
adopt a criminal registration ordinance.
even though Snell aulwrity would be as
s need to fall within the apparent breadth
of N.J.S.A. 10:14-2, and un 61-111 statute
duplicated the precise arca of the nunlcl-
pal aclinn (although some Lore Inn the gen-
eral prohlem), the court said (at 31, 2S2
.\ 2d at 72.3 ) :
It seems to it.,, therefore, that the still.
jecl is such that, while it dues not forr-
close the delegation of the State's police
power to municipalities, it nonetheless
advises against that course except under
statutory guidance and restraint.
While the result of bar in Ule.rky was
categorized under the lit,() of stale
preemption, it hits frequently been noted
that there is no magic in labels. 'I he doe.
trine of pr( eniption i% simply (,Ile of dcgrec
of manifestation by other Irgisltion and
indicia of legislative intent, oasily demon-
strable or reason hly infemIde, that ill(-
Legislature
heLegisl Lure docs not desire ;I given eousv-
quence of the unctmAimed delegation other-
wise prima lit indicated by the broad
contours of N.J.S.A. -10:45..2--but wants
the subject nutter (]Call with only at the
state le%tl. It is only a doorstep away
11,411, Ilse cnguale Inmriph that, by a Simi.
la, it .4111 ten all mailable Indicia of legisla
In.Int. tot, it r:ol ratiuoally be determined
Ih..t nnvn .object matte, is not intended
I,, the l:turr:d grant of \.J.S„1. 40:1 2
flit unrestnctcd nuoicipal Iegulatory dill.
crown; as %%here site)' indicia point to an
un ren fur m'ithholding of the pincer unless
the Legislature grants it capressly, whether
vith or scithoul state -mandated controls or
standards. The common principle appliea
Idv u' botb areas is that the court will not
pvnuit Itself to he Inked in by absolute
p "I'lliplinn• of Ivgislatitc intent in it
.cinch for the meaning of N.J.S.A. 40:4g -
I thins proceed to weigh the factors of
.lite rfm-mrit local concern relevant to a
dvtenninat fun of the legislative intent as to
whclher N.J...A. 40:45-2 delegates totally
not c,li icied regulatory jurisdiction on rent
control to Inn nisi pal itics.
I. The jurisdiction affects freedom to
yun11.10 with respect to it %cry common
and important commodity in general eom-
mern•.—apartn'ent units of every descrip-
tion and price range, with ournt•rships vary-
ing in character from investment syndicates
to modest (Iccedrnts' estates in trust for de.
pendents. The power involves interference
with the owner's statutory right to termi.
nate it tenancy at the end of it lease period
lthongh not exercised by the subject mn-
uieipalities), normally enforvible b% an ar-
ray of statutes. See Wagner, supra, 24
N. I., at Jig, 132 A.2d 794.
2. The public need for and constitution-
ality of rent control regulation depends
upon the existence of a shortage of hous-
ing accommodations of emergency dimen.
cion.. This is typically a concomitant of
general cyclical inflationary trends of re-
gional if not national proportions. While
the c\lent of the housing shortage may to
some minor degree vary locally, the subject
is predominantly of statewide rather than
peadiarly local incidence and concern.
There is therefore corresponding need that,
if there is to be rent control at all, uniform
I�,
� V
1NOANAN10R'1' v. f10RO116H OF FORT LEE N. J. ill
.unr•hnu❑ 1 +eoelf ImaLUliush I(„'�, tr
or did not
Ilett the Lrgi•I:du1
.•ecunlm 11,11 rtatpower
.ot,Lair iufor to they dnconstitute
u, "o, stenro,
s?,nu' , I lit o., a% lu what may Le expected,
I,_I.„y,nn% ,1-I erielloo u, IrI'Inutalibn of
•.,nry :uul e, m adegnac) of wainten:mcc likmi pt1n,l tdmslmay Ile ellooked to, along with
scllois. fair procolt,10 19r adminis ;111 )'
•-:,rice recictr of apphraumrs for relic( all Ibr „cher arailaldc indications of iotrol,
cnher landlords or tenaln%. and Lor as some manifestation of the legislative de -
1 f (icirntly emnprch,'nsivr adnlinis sires ill Lite matter.
,JL Sit
tr:uitc rules and regulations in all other
I,, rtint'nt aspects to implement the Icgisl:r
procisiotu adopted. All of thrsc dr-
-olerant prCollarly rtclon, till nempo%%er,
, .pcnisc and fundhig typic:tpy acail;,Llc
toe rather than lural lest., platin
•.il.l) suplrlrnlrmed locally w11h the N.
••n,rces of such num iripalilics as I,:,) (lilt
'i Beal uptirnl is legislat,d) for conlillg
.1u a program under IcgWatively fixed
r. oimmn standard..
.1 he fortl;oiog has Ia 1u till t•smbli%hyd.
.old, yu far as 1-111 ran 1, 41, lite gelo Ia11).
cc11ra mmmrr h) vbw11 this Slat” hay
.uhniunl,rs.d rent control Ili the past, sul-
In9 tet overriding or Coll, pdt•mrnlaq (cdcrr
al controls, generally equally comprchem
-ore, when torose hale cxisled. A comparl
•nu of the
4lnsicc wcll,thoughto and
comp
re
Provisions If h rent control
.rano,% as 1..1953, . 216 and 1..1950. C.
`Jl ,cilli the rudimentary ordinances note
.,• fore us well illustrates the point, As ex -
,u
nplcs of a number of patent apparent dr-
iiciencics of the latter? one finds that
none of them undertake to assure an owner
> right of fair operating rcutrn on his in-
.c•tn:c,t: romp:, n• 1..1953, c. 216, § 160h0:
of them Contains no lime limimtiotrl
r.,uhcr he reason of Inept draftsmanship
fails to effectuate an apparent intent to
prohibit terminations of tenancy at the end
o! lease terms at the will of the lessor.
Tht're are numerous ambiguities. While
tic incxperttcs% or drifting and substan-
(I%( deficiencies 1-f particular rent control
urdin:mecs adopted without statewide cot%-
•tol• ur standards docs not, of course, cs-
;, lit, nature of past legislative activi-
ty in -tit field is evidential; R en a
>tro n -' Ins been niamfcsled the Ltd
islat arc has a 1 It 1 s •n mode of r—M
oo,I A ;tIj2ro2rrdc ducal parnclpetlnn
hyys, 1 •c1- L)' ncrmil ' loca V....
come Into or stay out of a stale -regulated
scheoic•, as in 1..1)0., C. 216, N 2F; or h).
Icgislalinn available for the Ilse of
spcei:d
opting municipalities, as in 1..1956, C. 116.
The Legislature has also noticed the sub-
ject of municipal rent control in more re-
cent year%, expressly delegating such power
in relation to substandard multiple dwell-
inl;s. 1.3966, C. 16R, § 4. 1•.vco in that
limited context it took care to establish
standards and to assure fair net operating
income to owners, § 4(c), :unong other
safeguards. At the moment of this writing
the 1-egislalure is in earnest debate over a
comprehensive rent control bill which has
passed the Assembly, evidencing ongoing
concern with the subject at the slate level.
4. Chaotic conditions can be foreseen in
relation to the interests of both owners and
tenants if only a municipal boundary line
can separate apartment hooses subject to
no rent controls whatever from those
whlrc any of an infinite variety of kinds
of control may exist, none conformable to
any state regulation. This is the fair pros-
pect. under the determination of the major.
ity, in solidly urban areas in the populous
counties where a number of municipalities
frequently are found to coexist within a
fes, square miles, many with Concentra.
tions of apartoxmt houses of ever vsua4
description and rental category, .
2. '1'I,o poiolx not baviog btren mR,Inl, 1 do og porpurt horn to ho paning "roto Il,r "I""tp
of uuy of Ib,ue nnliu a lire".
312 N..7. 303 ATLANTIO REPORTER, 2d SERIES
Ip forming an integral market arca for
such facilities, in which owners and poles.
tial occupants vie compctitivcly.
All of the foregoing considerations may
property be deemed influential upon the
collective legislative mind. Reflection over
them finely convinces mr, notwilhstanding
such factors as may argue for the desira-
bility of unrestricted local discretion, that
in enacting N.J.S.A. 40:4S-2 the I.egisla-
ntre never intended, and does not now, that
the totally unrestricted power of rent con-
trol regulation should exist in the munici-
palities of the State at large without ex-
press supplementary legislative authoriza.
tion.
o � rn ry+n. vn,n
r
62 N.J. %17
STATE of New Jersey, Plalnllff-Respondent,
V.
Ullous Lea GREEN and Jesse Green,
Defendants -Appellants.
Sopromr Court of New Jersey.
Argued ora f', 1072.
Supplemental Unterial Filed Dec. 21, 1072.
Decided April G, 1073.
82 X. J. 547
Defendants were convicted in the Es-
sex County Court, Law Division, of assault
and battery on a police officer and of
carrying a dangerous knife, and one de-
fendant was also convicted of threatening
life, and they appealed. The Superior
Court, Appellate Division, 116 N.J.Super.
515, 283 A.2d Ila, affirmed, and petition
for certification was granted. The Su.
preme Cort, Lewis, P. J. A. D., Tempo.
rarily Assigned, held, inter alia, that where
jury was left without appropriate instruc-
tions as to nature of crime charged under
statute proscribing possession of a "dan-
geruu, knife," without knowing functional
test or meaning of a "dangerous knife"
and without hencfit of defendants' testimo.
ny explanation for carrying their respec-
tive pocketknives, cumulative effect was
not harmless, but sufficiently prejudicial as
to constitute a denial of a fair trial on
weapons charges against defendants, and
defendants were entitled to a new trial on
such charges.
Affirmed in part and reversed in part.
I. Statutes (7223.2(1)
Every effort should be made to har-
monize the law relating to the same sub.
ject matter.
2. Statutes P7223.2(I)
Statutes in pari materia are to be con-
strued together when helpful in resolving
doubts or uncertainties and in ascertaining
legislative intent and are to be considered
as a homogeneous and consistent whole,
giving effect to all their provisions.
3. Weapons 474
In enacting statute proscribing posses-
sion of a dangerous instrument, legislature
intended to prohibit naked possession of
certain concealed weapons, an offense to
he distinguished from similar crimes where
in addition to possession there are elements
of use, attempted use or an intent to use
such weapons. N.J.S.A. 2A:151-41, subd.
C.
4. Weapons 4717(2, 8)
As to crimes where in addition to pos-
session of a dangerous instrument there
are elements of use, attempted use or an
intent to use such instrument, penalty is
not only greater but there attaches to fact
of possession a presumption of intent to
use same in violation of law. N.J.S.A.
ZA:I51—tl, sold. c.
5. Weapons 474
Statute proscribing possession of a
dangerous instrument known as a dagger,
2
§364.1, CITIES-110AVERS AND DUTIES
"CW 164 Adrl —
nr. v,.b•n.. - CHAPTER 364
Cb 104,
POWERS AND DUTIES OF CITIES..
R•fen.4 b le IIIII.I. IIt.B, 171.1
C6.,w, 114• C,4. 1171. r.,.I.d b, 640A, eb 1018.1111, ,nwhbe Jul, 1. 1071
. A- ..le ..d.e no. xv v. vu .
364.1 Scope. -
364.2 Vesting of power.
364.3 Limitation of powers. -
364.4. Property right
364.5 Joint action -league of municlpalltles.
364.6 Procedure. -
364.7 Disposal of property. '
364.8 Overpasses or underpasses. ”
304.9 Flood control -railway tracks,
,304.30 Railway crossing.
364.11 Street construction by rallwaye.
364.12 Responsibility for public places.
364.13 Installments. _
364.14 Personal Injuries.
364.15 Changing grade of streeti.
364.1 Scope. A city may, except as expressly the voters at any city election. Upon rep
limited by the Constitution, and If not Incon• of .a valid petition as defined'in section 31
slsient with the laws of the general assembly, requesting that a proposal be submitted to
exercise any power and perform any function voters, the council shall, submlt the props
It deems appropriate to protect and preserve at the next regular city election or at a spry
the rights; privileges, and property of the city :- elecilon called for. that purpose "prior to
or of Its residents, and to, preserve and Im- next regular city election. If s major!
prove the peace, safety, health, welfare, com- i' those voting approves the proposal the c
fort, and convenience of Its residents. This m3 may proceed as proposed. . .
grant of home rule powers does not Include c. Notice of the• election shall be given
the power to enact private or civil law govern• i publication once each week for four cone
Ing civil relationships, except as Incident to an < tive weeks In a newspaper of general circt
exercise of an' Independent city power. 1051, , _ lion In the city. The �Iectlon shall be h
§664; R80,111047, 1050, 1057, 31071-1073, 1095; on a day not less than five nor more U
C73,11454-450, 482, 524; 097,11680, 695, 947; C13, leo twenty days after the last publication
1695; C24, 27, 31, 35, 39,145714, 5738, 6720; C46, notice. , _
50,§§366.1, 3f8.2, 420.31; C54, 58, 62, 66, 71, 73, I' d. The person asking f9r the grant)
§§366.1, 368.2, 420.31; 04GA, ch 1088,1301 ,_.'amending, extension, or renewal of a fn
See 66r,A, e6 I208J6 !or leminr.r, Dr..bl.u. 1. r. 6... chile shall pay the costs incurred In holdi
... by dvo t election, Incluilln the costs of the nailRum. Rule Ammd.'.I sawn•. J.1, 1, 1111 bt' 8
A franchise shall not be finally effective ur
364.2 Vesting •of power.
1. A power of- a city Is vested In the city.
council except as otherwise provided. -by a h
stale law.
2. The enurileration of a speclnc power of
'a city does not limit or restrict the general
grant of home rule power conferred by the
Constltiolnn. A city may exercise Its general,
powers subject only .to limitations expressly -
Imposed by a state or city law. '
3. An exerclse of a city power In not Incon -
sislent with a state law unless Itis Irrecnnell•
.able with the state law. -
4. s. A city may grant to' any person s
franchise to erect, maintain, and operate plants'
and systems for electric light and power,
heating, telephone, telegraph, cable television,
district telegraph and alarm, motor bur, trolley
bus, street railway or other public •transit,
waterworks, or gasworks, within the city for
a term of not more than twenty-five years.
The franchise may be granted, amended, ex. -
lend••d, or renewed only by an ordinance; but
no exclusive franchise shall be granted,
amended, extended, or renewed.
b. No such ordinance shall became effective
unlcws a majority of the persons voting thereon
vote In favor thereof. The proposal may be.
submitted by the council on Its own motion to
J 6 c2I!//"b^ A -.M
Ch 4%. 16-316 GA —
an acceptance In writing has been filed mi
the council and payment of the,costs has Dees ,
made �~
e. The franchise ordinance may regulate tD!
conditions required and the manner of use, of
the streets and public grounds of the city, a� 1
It may, for the purpose of providing electrinl,
"gas, heating, or water service, confer the power
to appropriate and condemn private p
erly upon the person franchised. 1051 166%'
860,111047, 1056, 1057, 1090, 1094, 1095; CA,
'51454-456,'471, 473, 474, 517, 523, 524; C97,111' '
7201722, 775, 779; S13,§4695, 720-722, 776; C24.%t, h
27, 31, 35,115738, 5904, 5904•cl, 5905-5909, 6121!,'7
6131-6134; C39,115738, 5904, 3904.1, 3905-3Y6�,:�r�:
0128, 6131-6134; C46, 50,11398.1, 386.1 9S6•Tlritf•33..11'.
397.2, 397.5497.8; C54, 5Q 62, 66,113682,
386.7, 388.5-388.9, 3972, 397.5-V7.8; CR, 71, 47
113682, 386.1486.7, 397.2, 397.r. -M.8: ('rIGA, v k • •'
1088,1111
Rnmr Rul. Amendment ,Rer7111 Job 1. 3976
5648 Limitation of powers. The following:; -
o. -are llmltatlons.upon the powers of a c1U: -
1. A city council shall exercise a power on1J`;2t .
by the passage of a motion, a resolution, u' �'•-
amendment, or an ordinance. I ;^a
2. A city may not provide a penalty
excess of a one hundred dollar fine or DI.•7•:.
excess of thirty days imprisonment for til!V -
' liW
V
vlolati
ten pe
torpor
county
` snoole'
e In the
hundn
city P'
shall I
i 3. A
nients
those
standa
or mol
law, u
4. A
fically
1073,
513,§C4
C46, 5(
3GSAA
36SA.1
!087,4] li
s« •
Nome
364.4
1. A
outsid
2. B
outsld
3. E
city P
side El
351 39
368.56;
1088,1
Ram.
364:
- A city
city 1
` power
privat
-Th
lions t
be au
provit
' ••It
munlr
a poll'
date f
violat
of thl
151311
1363.6
ch 10!
•71
TT'
1zu,D
n.m
3G1:
comp]
state
procet
city
may h(- devised like other real estate of the
•cst.uor. IC31,§1.266; 1160,§2298; C73.§2010; 607,
22987; C'21, 27, :Il, 35, 311,§10118; C•10, 50, 5i, 58,
d!. ,:1, 71. 73.,561.111
3u 1.13 nelnovaI of spouse or ch l ldre n.
?: elllivr husband nor wife can ionmve the
whw• nor the children from the homestead
wlihout the consent of the other. IC51,§14f;2;
{661,52.114; C73,§2215; C97, 13160; C24, 27, 31, 35,
.;9,410130; C46, 50, 5.1, 58, 62, f;fi, 71, 73,§561.151
:61,16 Exemption - divorced sponse, The
homestead of every family, whether owned by
the husband or wife, Is exempt from judicial
;aie, where there Is no special declaration of
statute to the contrary, and such right shall
continue In favor of the party to whom it Is
adjudged by divorce decree during continued
personal occupancy by such party. IC5141245;
RG0,52277; C73,41988; C97,1§2972, 2973; C24, 27,
31, 35, 39,910150; C46, 50, 54, 58, 62, 66, 71,
73.$561.16)
:,01.17 •'Famlly^ defined. A widow or wid-
ower, though without children, shall be deemed
a family within the meaning of this chapter,
while continuing to occupy the real estate used
as a homestead at the death of the husband
or wife. IC51,§1246; 880,12278; C7341989; C97,
13973; C24, 27, 31, 35, 30,110151; C48, 50, 54, 58.
Irl, CG, 71, 73,1561.171
561,18 Descent If there be no survivor, the
homestead descends to the Issue of either hue•
band or wife according to the rules of descent,
unless otherwise directed by will. (C51,11264;
Rn0,52296; C73,§2008; C97,§2985; C24, 27, 31, 35,
;10,§10152; C46, 50, 54, 58, 62, 66, 71, 73,§561.181
51{1.19 Exemption ID hands of Issue. Where
stea
hushandthe eor wf a the sadescenme shall be held by so the issue of tuck
Issue exempt from any antecedent debt[
their parents or their own, except those of
owner thereof contracted prior to its se
sttion. IC31,§1264; {[60,42296; C73,§2008;'1
§2965; c21, 27, 31, 35, 39.§16173; C49, 50,.4
-r1, r6. 71, 7:1,§561.191 cr
501_0 \ew homestead exempt. Where tl
has been a change In the limits of the he
stead, or a new homestead has been acga'
with the proceeds of the old, the new he
stead, to the extent In value of the old
exempt from execution in all cases where
old or former one would have been. (051,11
R60,§2289; C73,§2001; C97,§2981; C24, 27, 31,
39,;10154; G6, 50, 54, 58, 62, 66, 71, 73,15612
56121 Debts for which homestead IIs
The homestead may be sold to satisfy debt
each of the following classes: ,;.-4
1. Those contracted prior to Its acquWt
but then only to satisfy a deficiency remala
after exhausting the other property04
debtor, liable to execution.
2. Those created by written contract by.,:
sons having the power to convey, "pre
stipulating that It shall be liable, but then c
for a deficiency remaining after exhaustby
other property pledged by the same cont
for the payment of the debt. +-
3. Those Incurred for work done OA
terial furnished exclusively for the Imps
ment of the homestead. .A
4. If there Is no survivor or Issue, for'
payment of any debts to which It mlgh''
that time be subjected If It had never It
held as a homestead. (C51,012.18, 1249, 1
R60,§§2280, 2281, 2297; C73,§§1991-1993, 2
C97,§92975, 2976, 2986; C24, 27, 31, 35, 39,110
C46, 50, 54, 58, 62, 66, 71, 73,1561211
n2mr,e�J �Mule�d �'ItL prndon Ni, d., 1121.1 Jr
L1.1,111" Nr .11x6 Nrn4bxd per 636x0, 121{.11
CHAPTER 562
LANDLORD AND TENANT
57.2,t Apportionment of rent. The executor
of a tenant for life who leases real estate so
held, and dies on or before the day on which
the rent is payable, and a person entitled to
rent dependent on the life of another may
recover the proportion of rent which had ac-
crued at the time of the death of such life
tenant. IC5131267; RGO,§2299; C73,1201
§2988; C24, 27, 31, 35, 39,§10150; C46, 50,
62, 66, 71, 73,§562.11 ,
562.2 Double rental valne-liability.
ant giving notice of his Intention to (lull
premises at ■ time named, and holdir
UMA Ae e
atceement Is
=..:atlon of t
or not, It sha:
? shout notic
er-ept mere I
.-j an acr(•a
.ma:.cy Shall
�•ar upon th
-.^.nation 1
caner, where[
)arch I folic
_-cy shall n
If notice in 1
nnce of
101111; C•1'
rl'ibl. entry ,
Z - M7 \ntl•
--:;;cn node
!Owe!
t"dl2rd'1 Ilm, 1b 610
,,G2.9 Deposits-acparate from personal
;x.2.1
Apportionment of rent.
Return or withholding of deposll
;x,2,2
Double rental value -liability.
.562.10
501.11 Written alatement.
5.2.3
Attornment to stranger.
Tenant at wilt -notice to terminate.
;
Transfer
502.4
Termination or farm tenancies.
'r,;.13 Rights and obligations transferee
50?,g
5[1'1.x,
Atrreement for termination.
5r,2.14 punitive damages.
Notice -hots and when served.
56,2,15 Waiver veld.
:,,2.7
562.16 Effective date.
RENTAL DFPOSITS
:562.8
Definition.
c
'^
57.2,t Apportionment of rent. The executor
of a tenant for life who leases real estate so
held, and dies on or before the day on which
the rent is payable, and a person entitled to
rent dependent on the life of another may
recover the proportion of rent which had ac-
crued at the time of the death of such life
tenant. IC5131267; RGO,§2299; C73,1201
§2988; C24, 27, 31, 35, 39,§10150; C46, 50,
62, 66, 71, 73,§562.11 ,
562.2 Double rental valne-liability.
ant giving notice of his Intention to (lull
premises at ■ time named, and holdir
UMA Ae e
atceement Is
=..:atlon of t
or not, It sha:
? shout notic
er-ept mere I
.-j an acr(•a
.ma:.cy Shall
�•ar upon th
-.^.nation 1
caner, where[
)arch I folic
_-cy shall n
If notice in 1
nnce of
101111; C•1'
rl'ibl. entry ,
Z - M7 \ntl•
--:;;cn node
!Owe!
.Irr ..•,ch time, and a tenant or his as.ognee
.:Itpdty hotdiug over after the term, and alter
u
,,,It, ::h;ill Tray double the rental
:!:rn•u( during the time he holds (.ver
a%r
. , •,rrsun entitled thereto. 1C.i1,§12li,i;.1IGU,
•�� §2012; C97,§2989; C24, 27, 31, 33, 39,
fpn'� l'1,!, 50, 51.58, G2, 66,7l, :,§Sli:
p�Ct 11o,roluent to Ntran Ken The pay-
flit
ayent Of rent, or delivery of possession of
premises, to one not the lessor, Is void,
and 4hail not affect the rights of such lessor,
;da,s made with his consent, or In pursuance
of a judgment or decree of court or Judicial
use to which the lessor was a 91 C24y. C27,
31,
1120; IIGO,§23ti1; (.?3,§2013: C97,9290
IolrH; C16, 50, 54. 58, rig, 611, 71, 7;1.
1 r.I:; l
'I'rnonl at will-mrtice to terminote.
•fay person In the possession of real estate,
vah the aj,,ent of the owner, is presumed to
tx a tenant at will until the contrary Is shown,
,,ad shirty days' notice In writing must be
given by either party before he can terminate
a I tenancy; but when in any case, a rent
,ern -eyed payable at Intervals of less than
thirty otice need notbe
groomer days, than the
interval• IC 1,§§1208, 1-09;
Cl,,§17,16, 31, 35,139,§ 0139; C46, 50,154, 58?6.66,
11548.3 .,,a 649.4
Termination of farm tenaorlrs. In
ca,e of tenants occupying and cultivating
hems, the. notice must fix the termination of
Its a•nancy to lake place on the first day of
Hlrrh, except in eases of mere croppers,
whoa• D•a•.es shall be held to expire when the
nnn ., harvested; If the crop is corn. It shall
nr,: I.e later than the first day of December,
nn:••s otherwise agreed upon. IR60,§2218;
IT'..•.1015; C97,12991; C24, 27, 31, 35, 39,§I011ay
t'^•". 'A, 51, 58, fit, 66, 71, 73,§562.51
r.,s:..,,t, orn•tdon.. 1166e.2 .ed 6124
:+f2.G Agreement for termination. Where an
1¢reement is made fixing the time of the ter-
.Anation of the tenancy, whether in writing
or rot, It shall cease at the time agreed upon,
without notice. In the case of farm tenants,
acent mere croppers, occupying and cultivat.
!rg an acreage of forty acres or more, the
errancy shall continue for the following crop
ysar upon the same terms and conditions as
_he original tease unless written notice for
tzrmination is given by either party to the
whereupon the tenancy shall terminate
'dsch 1 following: provided further, the ten•
Irt•y shall not continue because of absence
q ,.*.:ice In case there be default In the per.
farmance of the existing rental agreement
'It-JV2318: C73,§2015; C97,§2991; C24, 27, 31, M.
n.1 -mo: C:a, 50, 59. 58, 62. 66, 71, 73,§5112.01
r+f:•,!. ,.!" nroddon., 111I6u ..d eros
N,17 Notice_how and when sen•ed. The
wr:acn notice so required shall be given as
lox•s-
11
I,.tSUIn IJ .l Sll 'l'li S.\S'I•, CnCS.i1
1. fly delivery of notice In per -,on un or he -
fur Septrnder I by one party o, the uther
with acceptmce of :a•nlce If:,.r,.un to be
signed by the person receiving the Nutire, or
2. By service un ether party on or before
September 1 by a person In behalf of the other
party, In the same manner as original notices
are berved, or
3. fly either party sending, to rile other at
tits last known address before September 1, a
notice by restricted certified matt. IC73,92016;
C97,§2991; C24, 27, 31, 35, 39,1iIdlb'2; C46, 50, 54,
58, G2, 66, 71, 73,§562.7; OGA, ch 28031 I
ibrrl Ll. .ovr vrorltloo., 11616.1 nu.l 6461
RENTAL. UEI•USM
sIr2.N I1e0uiduo. Any deposit of money to
secure the performance of a residential rental
agreement, other than a deposit which Is LX -
elusively in advance payment of rent, shall be
subject to the provisions of this division.
100A, ch 1252,§7l
5112.9 DePONlts-separate from personal
funds. All deposits of money shall be held by
the landlord for the tenant, who is a party to
the agreement. In a bank or savings and loan
association which is Insured by an agency of
the federal government. Such deposits shall
not be commingled with the personal funds of
the landlord. Notwithstanding the provisions
of chapter 117, all such deposits of money may
be held In a trust account, which may be a
common trust account and which may be an
Interest bearing trust account. Any Interest
earned on a deposit of money shall 1he th25'2,§21 prop•
erty of the landlord. 115GA, rh
Sd2.lo Return or withholding of deposit. A
landlord shall, within thirty days from the
date of termination of the tenancy and receipt
of the tenant's malling address or deilvery In.
suvctlons, return the deposit to the tempt or
furnish to the tenant a written statement show.
Ing the specific reason for withholding of the
deposit or any portion thereof. if the deposit
or any portion of the deposit is withheld for
the restoration of the premises, the statement
shall specify the nature of the damages. The
landlord may withhold from the deposit Only
such amounts as are reasonably necessary for
the following reasons:
1. To remedy a tenant's default in the pay-
ment
ayment of rent or of other funds due to the land•
lord pursuant to an agreement.
2. To restore the premises to their condition
at the commencement of the tenancy, ordinary
wear and tear excepted.
In an action concerning the deposit, the bur•
den of proving, by a prepnndcrance of the
evidence, the reason for withholding all or
any portion of the deposit shall be on the land.
lord. 1G5GA, ch 1252,131
562.11 11'rltten statement A landlord who
falls to provide n written statement within
thirty days of termination of the tenancy and
receipt of the tenant's mailing address or deliv-
ery Instructions shall forfeit all rights to with-
• • G i ��4
.. 2�'6
11
SENATE FILE oI
By WILLITS
Passed Senate, Date Passed House, Date
Vote: Ayes. Nays Vote: Ayes Nays
Approved_
A BILL FOR
1 An Act codifying the doctrine of implied warranty of
2 habitability and providing remedies.
3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
.9
20
2i
2
23
24
25
cn•14u+ 12172
1
I %.,
S. F.
1 Section 1. Chapter five hundred sixty-two (562), Code
2 1977, is amended by adding sections two (2) through eight
3 (8) of this Act as a new division to be entitled "Warranty
4 of Habitability."
5 Sec. 2. NEW SECTION. LANDLORD'S WARRANTY OF HABITABILITY.
6 A landlord's warranty of habitability shall exist at the
7 outset of a lease of residential premises including a house,
8 condominium, or apartment. A landlord shall warrant the
9 following:
10 1. That there are no latent defects in facilities and
11 utilities that are vital to the use of the premises for
12 residential purposes.
13 2• That those essential features shall remain in a
14 condition to maintain the habitability of the premises during
15 the entire term of the lease.
16 3. That there neither is nor shall be a violation of
17 applicable housing laws, regulations, or ordinances during
18 the term of the lease which would render the premises unsafe
19 or insanitary, and consequently unfit for habitation. '
20 Sec. 3. NEW SECTION. DUTY OF TENANT. A tenant of leased
21 residential premises shall have a duty to notify the landlord
22 of a deficiency or defect which is not known to the landlord.
23 Sec. 4. NEW SECTION. BREACH OF WARRANTY OF HABITABILITY.
24 A landlord does not breach the warranty of habitability within
25 the meaning of this Act unless the breach is of such a
26 substantial nature as to render the premises unsafe or
27 insanitary, and consequently unfit for habitation.
28 The circumstances of each case shall determine whether
29 a landlord has breached the warranty of habitability.
30 Pertinent factors to be considered in determining whether
31 a :,react, has occurred include:
1. Whether the deficiency or defect violates a housing
�3 law, regulation, or ordinance.
34 2. The nature of the deficiency or defect.
35 3. The effect of the deficiency or defect on safety and
-1-
AF. q/ H. F.
1 sanitation, and consequently habitability of the premises.
2 4. The length of time the deficiency or defect existed.
3 5. The age of the structure.
4 6. The amount of rent.
5 7. whether the tenant voluntarily, knowingly, and
6 intelligently waived the deficiency or defect or is estopped
7 from raising the question of breach.
8 B. Whether the deficiency or defect resulted from unusual,
9 abnormal, or malicious use by the tenant, a member of the
10 tenant's family, or other person on the premises with the
11 tenant's consent.
12 Sec. 5. NEW SECTION. TENANT REMEDIES.
13 1. If a landlord breaches the warranty of habitability,
14 the tenant may deliver a written notice to the landlord
15 specifying the acts and omissions constituting the breach
16 and that the rental agreement shall terminate upon a date
17 not less than thirty days after receipt of the notice if the
18 breach is not remedied in fourteen days. The rental agreement
19 shall terminate as provided in the notice unless the landlord
20 adequately remedies the breach prior to the fourteen day
21 deadline specified in the notice.
22 If substantially the same act or omission which constituted
23 a prior breach of which notice was given recurs within six
24 months, the tenant may terminate the rental agreement upon
25 at least fourteen days' written notice specifying the acts
26 and omissions constituting the breach and the date of ter -
27 minatibn of the rental agreement.
28 The tenant may not terminate for a condition caused by
29 the unusual, abnormal, or malicious use by the tenant, a
30 wumber of the tenant's family, or other person on the premises
31 with the tenant's consent.
32 2. If the rental agreement is terminated, the landlord
33 shall return any prepaid rent and rental deposits to the
34 tenant as provided in this chapter.
35 3. The tenant may obtain injunctive relief for a breach
-2-
■
S.F. 1411
� H.F. •
1 of the warranty of habitability -
2 4. If the landlord's breach of the warranty of habitability
3 is willful, the tenant may recover reasonable attorney fees.
4 5. When a landlord breaches the warranty of habitability,
5 the basic contract remedy of damages is available to, the
6 tenant.
7 The tenant's damages shall be the difference between the
8 fair rental value of the premises if they had been as warranted
9 and the fair rental value of the premises as they were during
10 occupancy by the tenant in an unsafe or insanitary condition.
11 When a tenant vacates leased residential premises because
12 of a landlord's breach of the warranty of habitability, the
13 tenant's damages after vacation of the premises shall be the
14 difference between the fair rental value of the premises if
15 they had been as warranted and the promised rent computed
16 for the balance of the term of the lease. This is the value
17 of the lease for the unexpired term of the lease.
18 In all events, a tenant shall have incidental and
19 consequential damages.
20 6. A landlord's alleged breach of the warranty of
21 habitability may be asserted as a defense and counterclaim
22 in a'landlord's action against a tenant to recover rent when
23 the tenant has vacated leased residential premises.
24 Sec. 6. NEW SECTION. SELF --HELP FOR MINOR DEFECTS. If
25 a landlord breaches the warranty of habitability and the
26 reasonable cost of remedying the breach is less than one
27 hundred dollars or an amount equal to one-half the periodic
28 rent, whichever is greater, the tenant may recover damages
29 for breach pursuant to section five (5), subsection five (5)
30 of this Act or may notify the landlord in writing of his or
31 her intention to correct the condition at the landlord's
32 expense.
33 If the landlord fails to comply within fourteen days after
34 being notified by the tenant, or as promptly as conditions
35 require in case of an emergency, the tenant may cause the
-3-
Y
Y
r
I
I1%,
•
• 2I/I H.F.
1 work to be done in a workmanlike manner. After submit
ting
2 an itemized statement to the landlord, the tenant may deduct
3 the actua_ and reasonable cost or the fair and reasonable
4 value of the work from the rent. This amount shall be subject
5 to the limitations set airt
taln this section.
the landlord's expense if the
6 A tenant may not rep
7 condition was caused by the unusual, abnormal, or malicious
8 use by the tenant, a member of the tenant's family, or other
9 person on the premises with the tenant's consent.
10 Sec. 7. This Act shall apply to rental agreements entered
11 into or extended or renewed after the effective date of this
12 Act.
is
13 Sec. B. This Act effective January 1, 1976.
EXPLANATION
14
15 This bill codifies the doctrine of implied warranty o
16 habitability established in the Iowa Supreme court case Mease
It also incorporates
17 V. Fox, 200 N.W. 2d 791 (Iowa 1972)•
18 some of the remedies contained in the uniform Residential
19 Landlord and Tenant Act.
20
21
22
23
24 .
25 i
26
27
28
29
30
31
32
33
34
35 _q
ISB 12205
can/ed/14
CPA -34"I 1/71
UNIFORM RESIDENTIAL
LANDLORD AND TENANT ACT
Drafted by the
NATIONAL CONFERENCE OF COhBUSSIONERS
ON UNIFORM STATE LAWS •
and by it
APPROVED AND RECOMMENDED FOR ENACTMENT
IN ALL THE STATES
at its
ANNUAL CONFERENCE •
MrixTiNc IN ITS EIGHTY -FMS! YXAR
AT SAN FRANCISOD, CALDPORNIA
AvcvsT 4-11,1972
WITH COMMENTS
The Committee which acted for the National Conference of Com-
missioners on Uniform State Laws in preparing the Uniform Resi-
dential Landlord and Tenant Act was as follows:
EDwAIm L. Scnwmn, 85 Devonshire St., Bwton, Marv. 02109, Chairman
ELwvN EvANs, 502 Market Tower Bldg., Wilmington, Del. 19801
JAxw H. CLAREE. 800 Pacific Bldg., Portland, Ore. 97204
W¢Lum C. GARDNER, 615 F SL, NW, Washington, D.C. 20007
WauAm C. Hn.LmAN, 403 S. Main St., Providence, R. I. 02903
PAtxieu PL7tuN. University of Hawaii School of Medicine. Honolulu, Hawaii
96822
GROB= A. RANNEY, Ja, Rm. 2000. 160 North LaSalle St., Chicago, Ill. 60601
R ,Boots Tom N�'D, 735 West New York SL, Indianapolis, Ind 46202
ROBERT A. LUCAS, 115 West Fifth Avenue, Gary, Ind. 46402, Chairman, Divi.
sion D, Ex Officio
Reporter -Draftsman
JULIAN Levi, South East Chicago Commission, 1400 East 53rd St. ,Chicago,
111. 60-615
Copies of all Uniform and Model Acts and other printed matter
issued by the Conference may be obtained from
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
1155 East Sixtieth Street
Chicago, Illinois 60637
•
before the alleged act of retaliation creates a rebuttable presumption that the
landlord's conduct was in retaliation. This pre. roan will not arise if the
tenant made the complaint after notice of a pmpaecd rent increase or diminu.
tion of senices.
ARTICLE VI
EFFECTIVE DATE AND REPEkLER
1 SECTION 6.101. [Effective Date.] This Act shall become ef-
2 fective on [ ..................1. It applies to rental agree -
3 ments entered into or extended or renewed on and after that
4 date.
COMMENT
This section, drawn from Section 10.101 of the Uniform Commercial Code,
is also drawn with the idea of an effective date considerably in advance so
there my be ample time for all of those who may be affected by the pro-
visions of the Act to become familiar with it. It is intended that the Act apply
to all lessee, renewals, and other events occurring after its effective date.
1 SECTION 6.102. [Specific Repealer.] The following Acts and
2 parts of Acts are hereby repealed: [List appropriate Acts]
1 SECTION 6.103. [Savings Clause.] Transactions entered in -
2 to before the effective date of this Act, and not extended or
3 renewed on and after that date, and the rights, duties, and
4 interests flowing from them remain valid and may be tenni-
5 Dated, completed, consummated, or enforced as required or
6 permitted by any statute or other law amended or repealed by
7 this Act as though the repeal or amendment had not occurred.
1 SECTION 6.104. [Severability.) If any provision of this Act
2 or the application thereof to any person or circumstance is held
3 invalid, the invalidity does not affect other provisions or appli-
4 cation of this Act which can be given effect without the invalid
5 provision or application, and to this end the provisions of this
6 Act are severable.
so
UNIFORM RESIDENTIAL LANDLORD AND TENANT ACT
ARTICLE I
GENERAL PROVISIONS AVP DEFINITIONS
PART I
SHORT TITLE, CONSTRUCTION, APPLICATION
AND SUDJEcr MATTER OF THE ACT
1 SECTION 1.101. [Short Title.]This act shall be known and
2 may be cited as the "Uniform Residential Landlord and Ten -
3 ant Act."
CO\t-MEVT
This Act concern; landlord -tenant relationships under rental agteeme
far residential purposes (Section 1.201). The Acr doe_ not apply to rent
agreements made for commercial, industrial, agricultural or any purpose other
than residential.
1 SECTION 1.102. [Purposes; Rules of Construction.]
2 (a) This Act shall be liberally construed and applied to
3 promote its underlying purposes and policies.
4 (b) Underlying purposes and policies of this Act are
5 (1) to simplify, clarify, modernize, and revise the law
6 governing the rental of dwelling units and the rights and
7 obligations of landlords and tenants;
8 (2) to encourage landlords and tenants to maintain and
9 improve the quality of housing; and
10 (3) to make uniform the law with respect to the subject
11 of this Act among those states which enact it.
Co+tME%T
Existing landlord -tenant law in the United States, save as modified by a�
ute or judicial interpretation, is a product of English common law develo
within on agricultural society at a time when doctrines of promissory contract
were tmrecognized. Thus, the landlord -tenant relationship was viewed as can.
veyance of a lea bold estate and the covenants of the parties generally inde-
pondent. These doctrines are inappropriate to modern urban conditions and
inexpressive of the vital interests of the parties and the public which the law
most protect.
This Act recognizes the modem tendency to treat performance of certain
obligations of the parties As interdependent.
Moral construction of this Act and its application for promotion of its
underlying purposes and policies will permit development by the courts in
light of unforseron and new cimumstances and practices. However, proper
construction of the Act requires that its interpretation and application be
limited to its mason.
1 SECTION 1.103. [Supplementary Principles of Law Appli-
2 cable.] Unless displaced by the provisions of this Act, the prin-
3 ciples of law and equity, including the law relating to capacity
4 to contract, mutuality of obligations, principal and agent, real
5 property, public health, safety and fire prevention, estoppel,
6 fraud, misrepresentation, duress, coercion, mistake, bankrupt -
7 cy, or other validating or invalidating cause supplement its
8 provisions.
CoMnrsNT
This section, adapted from Section 1.103 of the Utriform Conmtencial Code,
indicates the continued applicability to Landlord -tenant relations of all sup-
plemental bodies of law except in se, far as they are explicitly displaced by
this AM. The listing given in this section is merely illustrative; no listing
could be exhaustive. 11,
1 SECTION 1.104. [Construction Against Implic,9-1epeal.]
2 This Act being a general act intended as a unified coverage of
3 its subject matter, no part of it is to be construed as impliedly
4 repealed by subsequent legislation if that construction can
5 reasonably be avoided.
COMMENT
This section indicates the policy that no Act which bears evidence of care-
fully considered permanent regulative intention should lightly be regarded as
impliedly repealed by subsequent legislation. This Act, carefully integrated
and intended as a uniform codification of permanent character covering an
entire "field" of lave, is to be regarded m particularly resistant to implied
repeal.
1 SECTION 1.105.[Administration ofRemedies; Enforcement.]
2 (a) The remedies provided by this Act shall be so adminis-
3 tered that an aggrieved party may recover appropriate dam -
4 ages. The aggrieved party has s duty to mitigate damages.
5 (b) Any right or obligation declared by this Act is enforce -
6 able by action unless the provision declaring it specifies a dif-
7 ferent and limited effect.
COMMENT
Subsection (a) is intended to negate unduly narrow or technical interpreta.
tion of remedial provisions and to make clear that damages must be mini -
mixed. The use of the words "aggrieved party" is intended to indicate that in
appropriate circumstances rights and remedies may extend to third persons
under this Act or supplementary principles of law (compare Article IV, Parts
I and Il).
Under subsection (b) any ri,.ht or obligation described in this Act is en.
forceable by court action, even though no remedy my be expressly provided.
unless a particular provision specifies n different and limited effect. Whether
tort action, specific performanw or equilndde relief is available is detennintsl
not by this section but by specific pro%i.ions:aed supplementary princlphs (see
Section 1.103).
21 nution of services. "Presumption" means that the trier of fact
22 must find the existence of the fact presumed unless and until
23 evidence is introduced which would support a finding of its
24 nonexistence.
25 (c) Notwithstanding subsections (a) and (b), a landlord
26 may bring an action for possessior. if:
27 (1) the violation of the applicable building or housing
28 code was caused primarily by lack of reasonable care by the
29 tenant, a member of his family, or other person on the prem -
30 ises with his consent; or
31 (2) the tenant is in default in rent; or
32 (3) compliance with the applicable building or housing
33 code requires alteration, remodeling, or demolition which
34 would effectively deprive the tenant of use of the dwelling
35 unit.
36 (d) The maintenance of an action under subsection•
37 does not release the landlord from liability under Section
38 4.101(b).
COMMGNT
State and federal courts in California (Aweeka v. Bonds, 20'Cal. App. 3d
281, 97 Cal. Rptr. 650 (19:11 Schuriger c. Bonds, 3 Cal. App. 2d 507, 90 Cal.
Rptr. 729 1197011. Florida (Bowles c. Blue Lake Development Corp., [S. Flor.
ida, 19711, C.C.H. Pov. L Rptr. Sec. 12,920), Massachusetts (McQueen v.
Druker, 317 F. Supp. 112 (D. Blass. 19701), New Jersey (Alexander Hamil.
ton Savings and Loan Am. V. Whalen, 107 N.J. Super. 89, 257 A. 2d 7 [19691;
Engler v. Capital Management Corp., 112 N.J. Super. 445, til A. 2d 615
[1970); E. E. Newman Inc, v. Hallock, 116 N.J. Super. 220, 281 A. 2d 544
[19711; Silberg c. Lipscomb, 117 N.J. Super. 491, 295 A. 2d 86 [19711), New
York (Nosey e. Club Van Cmr(landt, 299 F. Supp. 501 IS.D.N.Y. 19691), Ohio
(T.R.O. granted. Case No. 8375 (S.D. Ohio]). Wisconsin (Dickhut V. Norton,
45 W. 2d 309, 173 N.W.'?d297 [19701) and the District of Columbia (Edwards
v. Habib, 397 F. 2d 687 (D.C. Cir. 19681 have upheld the defense of retaliatory
eviction
A number of stakes by statute have recognized the defense: Cal. C.
1912 . 7
5; Conn. Gem St. Ann.. Sec. 42.540a [Supp. 19691: Del. Ch. 25 Sec
(Supp 19711; Ha Ch. 6e:8 Sec. 43 [Supp. 19711: 111. Rev. Sl. Ch 80, Sec. 71
[Supp. 19711: hip. Rev. St. Tit. 14 Sec. 6001.6M: Md. Laws Ch. 687 Sec. 9-10
[Supp. 19711: Mass C.nrip. Laws Ann., Ch. 186 Sec. 18 [Supp. 19701: Mich
Comp. Laws Ann.. Ch 60(1. Sec. 5618 IAm d P.S. 19691; Mina Stat, Ch. 240
Sec. 566.03 [Supp. 19-14 X.I. Slat. Ann, 2A Sec. 42.10.10: N.Y. Uncont'd
lAw•s, Tit. 23 &. . S:90. �kW (Rupp. 19711: Pn. St. Ann. Ch. 35, Sec. 1700.1
(Supp. 19711; R.I. Cwm I_sw: Ann. Sm. 34-20.10 [19681. The legislatures of
Maine, Massachusetu. Xevv Jersey, Michigan, and Rhode Island also protect
tenants from eviction if they hme organized or become n member of a tenants'
union or similar orcani:mion
The question as to whether the landlord is engaging in retaliatory conduct
as prohibited by the stmuw k a quostinn of fact In he delermined by the court.
In an anion by or again=::h:• tenanl, evidmter ora complaint within one year
29
COMMENT
See Section 1.402 u to effect of occupancy under lease signed by only one
party and Section 2.103 as to tenant's rights to bring an action for possession
against a prior holdover tenant.
1 SECTION 4.302. [Landlord and Tenant Remedies for Abuse
2 of Access.]
3 (a) If the tenant refuses to allow lawful access, the land -
4 lord may obtain injunctive relief to compel access, or termi-
5 nate the rental agreement. In either case the landlord may re -
6 cover actual damages and reasonable attorney's fees.
7 (b) If the landlord makes an unlawful entry or a lawful en -
8 try in an unreasonable manner or makes repeated demands for
9 entry otherwise lawful but which have the effect of unreason -
10 ably harassing the tenant, the tenant may obtain injunctive
11 relief to prevent the recurrence of the conduct or terminate the
12 rental agreement. In either case the tenant may recover actual
13 damages (not less than an amount equal to (1) month's rent ]
14 and reasonable attorney's fees.
COMMENT
See Section 3.103 w to right of access.
ARTICLE V
RETALIATORY CONDUCT
1 SECTION 5.101. (Retaliatory Conduct Prohibited.)
2 (a) Except as provided in this section. a landlord may not
3 retaliate by increasing rent or decreasing services or by bring -
4 ing or threatening to bring an action for possession after:
5 (1) the tenant has complained to a governmental agency
6 charged with responsibility for enforcement of a building or
7 housing code of a violation applicable to the premises ma -
8 terially affecting health and safety; or
9 (2) the tenant has complained to the landlord of a vio-
10 lation trader Section 2.104; or
11 (3) the tenant has organized or become a member of a
12 tenant's union or similar organization.
13 (b) If the landlord acts in violation of subsection (a), the
14 tenant is entitled to the remedies provided in Section 4.107
15 and has a defense in Any retaliatory action against him for pos-
16 session. In an action by or against the tenant, evidence of a
17 complaint within [1 ] year before the alleged act of retnlintion
18 creates a presumption that the landlord's conduct was in re -
19 laliation. The presumption does not arise if the tenant made
20 the complaint after notice of a proposed rent increase or dimi-
28
1 SECTION 1.106. (Settlement of Disputed Claim or Right.] p
2 claim or right arising under this Act or on a rental agreement
3 if disputed in good faith, may be settled by agreement.
COMMENT
This section applies to settlement,% of claims asserted by either landlord o
tenant.
Subsequent sections of this Act (a) forbid the tenant from prior waiver a
rights (Section 1.4001. and (b) subject the bargain of the parties to the test o
eonecionability (Section 1.303).
PART 11
SCOPE AND JURISDICTION
I SECTION 1.201. ]Territorial Application.( This Act applie
2 to. regulates, and determines rights, obligations, and remedie
3 under a rental agreement, wherever made, for a dwellin�
4 located within this state.
1 SECTION 1.202. (Exclusions from Application of Act.] Un
2 less created to avoid the application of this Act, the followin;
3 arrangements are not governed by this Act:
4 (1) residence at an institution, public or private, if ins
5 dental to detention or the provision of medical, geriatric
6 educational, counseling, religious, or similar service;
7 (2) occupancy under a contract of sale of a dwelling uni
8 or the property of which it is a part, if the occupant is th
9 purchaser or a person who succeeds to his interest;
10 (3) occupancy by a member of a fraternal or social of
11 ganizstion in the portion of a structure operated for th
12 benefit of the organization;
COMMENT
A fraternal or social organization is deemed to also cover the ••atldetic ub
13 (4) transient occupancy in a hotel, or motel [or I F
14 [subject to cite state transient lodgings or room occupanc
15 excise tax act ] I;
16 (5) occupancy by an employee of a landlord whose riga
17 to occupancy is conditional upon employment in and shot:
18 the premises:
19 (6) occupancy by an owner of a condominium unit or
20 holder of a proprietary lease in a cooperative:
21 (7) oe upancy under a rental agreement covering pren
22 ices used b% the occupant primarily for agricultural purpose
CON TIENT
This AM regulote, landlord -tenant relations in residential properties. It
not intended to apply where residence is incidental to another primary pu
pose such as residence in a prison, a hospital or nursing home, a dormitory
owned and operated by a college or school, or residomv by a landlord's em.
ployee such as a custodian, janitor, guard or caretaker rendering service in or
about the demised premises This Act is intended to apply to government or
public agencies acting as landlords (Section 1.301(8)).
This Act does not apply to contpaney by a purchaser under a contract of
sale. This Act applies to occupancy by the holder of an option to purchase, as
distinguished from a contract of sale.
This Act applies to roomers and boarders but is not intended to apply to
transient occupancy. In many jurisdictions lramivat hotel operations are
subject to special tares and regulations and, where available, determinations
under such authority constitute appropriate criteria.
All of the "riusions enumerated apply only to genuine, bona fide arrange-
ments not created to avoid the application of the Act and are subject to the
test of good faith (see Section 1.302).
1 [SECCION 1203. [Jurisdiction and Service of Process.]
2 (a) The [ ] court of this state may exercise
3 jurisdiction over any landlord with respect to any conduct in
4 this state governed by this Act or with respect to any claim
5 arising from a transaction subject to this Act. In addition to
6 any other method provided by rule or by statute, personal jur-
7 isdiction over a landlord may be acquired in a civil action or
8 proceeding instituted in the court by the service of process in
9 the manner provided by this section.
10 (b) If a landlord is not a resident of this state or is a cor-
11 poration not authorized to do business in this state and en -
12 gages in any conduct in this state governed by this Act, or en -
13 gages in a transection subject to this Act, be may designate an
14 agent upon whom service of process may be made in this state.
15 The agent shall be a resident of this state or a corporation
16 authorized to do business in this state. The designation shall
17 be in writing and filed with the [Secretary of State]. If no
18 designation is made and filed or if process cannot be served in
19 this state upon the designated agent, process may be served
20 upon the [Secretary of State], but service upon him is not ef-
21 fective unless the plaintiff or petitioner forthwith mails a copy
22 of the process and pleading by registered or certified mail to
23 the defendant or respondent at his last reasonably ascertain.
24 able address. An affidavit of compliance with this section shall
25 be filed with the clerk of the court on or before the return day
26 of the process, if any, or within any further time the court
27 allows,]
COM St/:Nr
This section hestows jurisdiction en the courts of the enacting state over
landlonls who violate the Act and pNPrdes n method of obtaining tem. ml
once will not bar the landlord's remedy for a later breach. Acceptance of un-
paid rent paid after expiration of a termination notice does not constitute a
waiver of the termination
1 SEcION 4205. [Landlord Liens; Distress for Rent.]
2 (a) Alien or security interest on behalf of the landlord in
3 the tenant's household goods is not enforceable unless perfect-
o ed before the effective date of this Act.
5 (b) Distraint for rent is abolished.
1 SacrION 4.206. (Remedy after Termination.] It the rental
2 agreement is terminated, the landlord has a claim for posses -
3 sion and for rent and a separate claim for actual damages for
4 breach of the rental agreement and reasonable attorney's fen
5 as provided in Section 4.201(c).
1 SSCITON 4207. [Recovery of Possession Limited.] A If
2 lord may not reoover or take possession of the dwelling unit by
3 action or otherwise, including willful diminution of services to
4 the tenant by mtermpting or causing the interruption of heat,
5 running water, hot water, electric, gas, or other essential serv-
6 ice to the tenant, except in case of abandonment, surrender,
7 or as permitted in this Act.
COMMFST
See Section 4.10:.
PART III '
Pgaloolc TeauNcy; HOLDOVER; Anus or Access
I SRCCION 4.301. [Periodic Tenancy; Holdover Remedies.]
2 (a) Tbe landlord or the tenant may terminate a week -to -
3 week tenancy by a written notice given to the other atAft
4 (10] days before the termination date specified in the
5 (b) The landlord or the tenant may terminate a montfile-
6 month tenancy by a written notice given to the other at least
7 (60] days before the periodic rental date specified in the
8 notice.
9 (c) If the tenant remains in possession without the land -
10 lord's consent after expiration of the term of the rental agree -
11 went or its termination, the landlord may bring an action for
12 possession and if the tenant's holdover is willful and not in
13 good faith the landlord may also recover an amount not more
14 than (3] month's periodic rent or [threefold] the actual dam -
15 ages sustained by him, whichever is greater, and reasonable
16 attorney's few. If the landlord consents to the tenant's con -
17 tinued occupancy. Section 1.401(d) applies.
27
6 in [14] days after written notice by the landlord specifying
7 the breach and requesting that the tenant remedy it within
8 that period of time, the landlord may enter the dwelling unit
9 and cause the work to be done in a workmanlike manner and
10 submit the itemized bill for the actual and reasonable cost or
11 the fair and reasonable value thereof as rent on the next date
12 periodic rent is due, or if the rental agreement has terminated.
13 for immediate payment.
CO?, l T
The landlord may proceed under either Section 4.201 or Section 4.202. In
event of a recurring breech, he can proceed miler either section. He must
serve notice in all cases.
1
2
3
4
b
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
SEcrION 4.203. (Remedies for Absence, Nonuse and Aban-
donment.]
(a) If the rental agreement requires the tenant to give no-
tice to the landlord of an anticipated extended absence (in
excess of (71 days) as required in Section 3.104 and the tenant
willfully fails to do so, the landlord may recover actual dam-
ages from the tenant.
(b) During any absence of the tenant in excess of [ 71 days,
the landlord may enter the dwelling unit at times reasonably
necessary.
(c) If the tenant abandons the dwelling unit, the landlord
shall make reasonable efforts to rent it at a fair rental. If the
landlord rents the dwelling unit for a term beginning before
the expiration of the rental agreement, it terminates as of the
date of the new tenancy. If the landlord fails to use reasonable
efforts to rent the dwelling unit at a fair rental or if the land-
lord accepts the abandonment as a surrender, the rental agree-
ment is deemed to be terminated by the landlord as of the date
the landlord has notice of the abandonment. If the tenancy is
from month-to-month or week -to -week, the term of the rental
agreement for this purpose is deemed to be a month or a week,
as the case may be.
1 SECTION 4.204. [Waiver of Landlord's Right to Terminate.1
2 Acceptance of rent with knowledge of a default by the tenant
3 or acceptance of performance by him that varies from the
4 terms of the rental agrtpment constitutes a waiver of the land-
s lord's right to terminate the rental agreement for that breach,
6 unless otherwise agreed after the breach has occurred.
COMNRNT
If breach of a continuing duty is involve,l. acceptance of rent or perfnrnr
26
jurisdiction by service of process. The brackets indicate that the section may
ba omitted by those states which already have "long-arm" statutes. The rights
under this section are additional to those provided in Section 2.102 of this Act.
The word,. "Secretary of State" are bracketed since in some jurisdictiom
some other public official may be designated by law as empowered to receive
service.
This section as drawn does not provide for substitute service and jurisdic.
tion in an se(iun brought against a tenant. In the view of the Commissioners
authorization for such procedure, if deemed appropriate, should be made by
general legislation applying to all debtors• naturally including tenants.
PART III
GENERAL DEFINITIONS AND
PRINCIPLES OF INTERPRETATION: NOTICE
1 SECTION 1.301. [General Definitions.] Subject to additional
2 definitions contained in subsequent Articles of this Act whit
3 apply to specific Articles or Parts thereof, and unless the
4 teat otherwise requires, in this Act
5 (1) "action" includes recoupment, counterclaim, set-off,
6 suit in equity, and any other proceeding in which rights are
7 determined, including an action for possession;
8 (2) "building and housing codes" include any law, ordi-
9 nance, or governmental regulation concerning fitness for
10 habitation, or the construction, maintenance, operation, oc-
11 cupancy, use, or appearance of any premises or dwelling unit;
COsoaNT
Typical of such "building and housing codes" are housing, building, sanita-
tion, electrical, plumbing, fire prevention, safety and security ordinances and
regulations. It is intended to include all such codes whether enacted or pro
mulgated under federal, state or local authority.
12 (3) "dwelling unit" means a structure or the part of a
13 structure that is used as a home, residence, or sleeping place
14 by one person who maintains a household or by 2 or
15 persons who maintain a common household;
16 (4) "good faith" means honesty in fact in the conduct of
17 the transaction concerned;
18 (5) "landlord" means the owner, lessor, or sublessor of
19 the dwelling unit or the building of which it is a part, and
20 it she means a manager of the premises who fails to disclose
21 as required by Section 2.102;
22 (6) "organization" includes a corporation, government,
23 governmental subdivision or agency, business trust, estate,
24 trust, partnership or association, 2 or more persons having
25 a joint or common interest, and any other legal or commet•-
26 cial entity;
27 (7) "owner" means one or more persons, jointly or sever -
28 ally, in whom is vested (() all or part of the legal title to
29 property or (ii) all or part of the beneficial ownership and
30 a right to present use and enjoyment of the premises. The
31 term includes a mortgagee in possession;
COMMENT
Accordingly, in the ase of m active trust where all the duties and powers
of management inum to the trustee and the rights of the beneficiary fire
limited to the receipt of income from the trust estate and the beneficiary has
no right to the present use and enjoyment of the property, the trustee would
be considered an owner but the beneficiary would not. In the case of the so-
called "naked title" trust encountered in some jurisdictions where the trustee
holds legal title but all powers of mane-ement and direction are vested in the
beneficiary, the trustee, as the holder of legal title, would be considered an
owner; the beneficiary, since he has a right under the trust agreement to
present use and enjoyment of the property, would also be considered an own.
er. The same rrsult would be reached if the trust were revocable at the direr.
tion of the beneficiary. In the case of property held in the name of a nominee
or straw the beneficial ow•oer would be considered m owner.
32 (8) "person" includes an individual or organization;
33 (9) "premises" means a dwelling unit and the structure
34 of which it is a part and facilities and appurtenances therein
35 and grounds. areas, and facilities held out for the use of ten -
36 ants generally or whose use is promised to the tenant;
CONOmrcT
Agricultural leases am excluded from operation of the Act (Section 1.202
(7)). Inclusion of "grounds. areas and facilities held out for the use of ten•
ants" does not alter the exclusion.
37 (10) "rent" means all payments to be made to the land -
38 lord under the rental agreement;
39 (11) "rental agreement" means all agreements, written
40 or oral, and valid rules and regulations adopted under Sec -
41 tion 3.102 embodying the terms and conditions concerning
42 the use and occupancy of a dwelling unit and premises;
CortmvT
"Rental agreement" will thus include the original agreement between land.
lord and tenant as well ns any modification and all valid riles and regulations
concerning use and occupancy as provided in Section 3.102.
43 (12) "roomer" means a person occupying a dwelling unit
44 that does not include a toilet and either a bath tub or a
45 shower and a refrigerator, stove, and kitchen sink, all pro -
46 vided by the landlord, and where one or more of these facili-
47 ties are used in common by occupants in the structure;
12 security recoverable under Section 2.101 and all prepaid rent.
COMMENT
This section presides a remedy for the violation of Section 4.207. See also
comment to Section 4.104(c).
PART II
LANDLORD REMEDIES
1 SECTION 4.201. [Noncompliance with Rental Agreement;
2 Failure to Pay Rent.]
3 (a) Except as provided in this Act, if there is a material
4 noncompliance by the tenant with the rental agreement or a
5 noncompliance with Section 3.101 materially affecting health
6 and safety, the landlord may deliver a written notice to a
ecihi
7 tenant spng the acts and omissions constituting SW
8 breach and that the rental agreement will terminate upon a
9 date not less than [301 days after receipt of the notice. If the
10 breach is not remedied in [14] days, the rental agreement shell
11 terminate as provided in the notice subject to the following. If
12 the breach is remediable by repairs or the payment of damages
13 or otherwise and the tenant adequately remedies the breach
14 before the date specified in the notice, the rental agreement
15 shall not terminate. If substantially the same act or omission
16 which constituted a prior noncompliance of which notice was
17 given recurs within [6] months, the landlord may terminate
18 the rental agreement upon at least [141 days' written notice
19 specifying the breach and the date of termination of the rental
20 agreement.
21 (b) If rent is unpaid when due and the tenant fails to pay
22 rent within [141 days after written notice by the land)orJ&
23 nonpayment and his intention to terminate the rental agW
24 intent if the rent is not paid within that period, the landlord
25 may terminate the rental agreement.
26 (c) Except as provided in this Act, the landlord may re -
27 cover actual damages and obtain injunctive relief for any non -
28 compliance by the tenant with the rental agreement or Section
29 3.101. If the tenant's noncompliance is willful the landlord
30 may recover reasonable attorney's fees.
I SECTION 4:202. [Failure to Maintain.] If there is noncom -
2 pliance by the tenant with Section 3.101 materially affecting
3 health and safety that can be remedied by repair, replacement
4 of a damaged item, or cleaning, and the tenant fails to comply
5 as promptly as conditions require in case of emergency or with -
OR
1 .SECTION 4.106. [Fire or Casualty Damage.]
2 (a) If the dwelling unit or premises are damaged or de.
3 stroyed by fire or casualty to an extent that enjoyment of the
4 dwelling unit is substantially impaired. the tenant may
5 (1) immediately vacate the premisets and notify the land -
6 lord in writing within (141 days thereafter of his intention
7 to terminate the rental agreement. in which case the rental
8 agreement terminates as of the date of vacating; or
9 (2) if continued occupancy is lawful. vacate any part of
10 the dwelling unit rendered unusable by the fire or casualty.
11 in which case the tenant's liability for rent is reduced in
12 proportion to the diminution in the fair rental value of the
13 dwelling unit.
14 (b) If the rental agreement is terminated the landlord shall
15 return all security recoverable under Section 2.101 and all
16 prepaid rent. Accounting for rent in the event of termination
17 or apportionment shall be made as of the date of the fire or
18, casualty.
COMMENT
Under common law, notwithstanding leased premises were destroyed, the
tenant was still under obligation to pay rent. Legislation has been adopted in
various states providing that if the premises are so destroyed or injured w to
be untemntable or unfit for occupancy the tenant may quit and surrender
possession of the premises:
Arizona Rev. Stat, Sec. 33.343 (1956)
Connecticut Gem Stat. Ann., Sec. 47-24 (1960)
Michigan Stat Ann., Sec. 26.1121 (1953)
Minnesota Stat. Ann., Sec, 504.05 (1947)
Mississippi Code Ann., Sec. 898 (1957)
Wiaoonsin Stat. Ana• 234.17 (1957)
West Virginia in 1931 adopted Section 37.6-28 providing for
., a reasonable reduction of the rent for such time as my elapse until
there be placed again upon the premises buildings, or other strvcturea,
of as much value to the tenant for his purpawe as those destroyed, ..."
1 SECTION 4.107. [Tenant's Remedies for Landlord's Un4lau,-
2 ful Ouster, Exclusion, or Diminution of Service.] If a land -
3 lord unlawfully removes or excludes the tenant from the prem -
4 ises or willfully diminishes services to the tenant by interrupt -
5 ing or causing the interruption of heat, running water, hot
6 water, electric, gas, or other essential service, the tenant may
7 recover possession or terminate the rental agreement and, in
8 either case, recover an amount not more than [3] months'
9 periodic rent or [threefold] the actual damages sustained by
10 him, whichever is greater, and reasonable attorney's fees. If
11 the rental agreement is terminated the landlord shall return all
24
COMMENT
This Act provides lesser rights to a roomer ti distinevishtd from the tenmtt
of a dwelling unit. The definition require, certain facilities to be provided by
the landlord. This requirement is not met hr provision of the same by the
tenant.
48 (13) "single family residence" means a structure main -
49 tained and used as a single dwelling unit. Notwithstanding
50 that a dwelling unit shares one or more walls with another
.il dwelling unit, it is a single family residence if it has direct
52 access to a street or thoroughfare and shares neither beating
53 facilities, hot water equipment. nor any other essential fa -
54 cility or service with any other dwelling unit;
55 (14) "tenant" means a person entitled under a rental
56 agreement to occupy a dwelling unit to the exclusion of
57 others.
1 SECTION 1.302, [Obligation of Good Faith.] Every duty
2 der this Act and every act which must be performed as a con -
3 dition precedent to the exercise of a right or remedy under this
4 Act imposes an obligation of good faith in its performance or
5 enforcement.
CaMNIEST
Section 1.302 is adapted from Section 1-203 of the Uniform Commercial
Code. As the commentators there said. "This section sets forth a basic prin-
ciple running throughout this Act, The principle involved is that in m ner.
dal transactions good faith is required in the performance and enforcement
or all agreements or duties." The commentators them drew attention to par.
titular applications of Utis general principle. The intention is that the rule
be identical in landlord -tenant relationships and. similarly, particular appli.
cations of this general principle appear in specific provisions of this Act such
as exclusions (Section 1.202), mWintory eviction m well as cornplaints made
to public authorities (Section 5.101), and obligation of the landlord to repair
(Section 2.104)- •
1 SECTION 1.303. ]Unconscfonability.1
2 (a) If the court, as a matter of law, finds
3 (1) a rental agreement or any provision thereof was un -
4 conscionable when made, the court may refuse to enforce
5 the agreement, enforce the remainder of the agreement
6 without the unconscionable provision, or limit the applica-
7 tion of any unconscionable provision to avoid an uncon-
8 scionable result; or
9 (2) a settlement in which a party waives or agrees to
10 forego a claim or right under this Act or under a rental
11 agreement was unconscionable when made, the court may
12 refuse to enforce the settlement, enforce the remainder of
13 the settlement without the unconscionable provision, or limit
14 the application of any unconscionable provision to avoid an
15 unconscionable result.
16 (b) If unconscionability is put into issue by a party or by
17 the court upon its own motion the parties shall be afforded a
18 reasonable opportunity to present evidence as to the setting.
19 purpose, and effect of the rental agreement or settlement to aid
20 the court in making the determination.
Ca1r.�NT
This Section, adapted from the Uniform Commercial Code and the Con-
sumer.Credit Code, is intended to make it possible for the courts to police
explicitly against rental agreements, clauses, settlements, or waivers of claim
or right which they find to be unconscionable. This section is intended to
allow the courts to pass directly on the issue of unconscionability and to make
a conclusion of law as to unconscionability. The basic teat is whether, in light
of the background and setting of the market, the conditions of the particular
parties to the rental agreement, settlement or waiver of right or claim am so
o sided as to be unconscionable under the circumstances existing at the
time of the making of the agmernent or settlement. Thus, the particular facts
involved in each case are of utmost importance since unconscionability may
exist in some situations but not in others. Either landlords or tenants may, in
appropriate circumstances, astil themselves of this section.
1 SECTION 1.304. [Notice.)
2 (a) A person has notice of a fact if
3 (1) he has actual knowledge of it,
4 (2) he has received a notice or notification of it, or
5 (3) from all the facts and circumstances known to him
6 at the time in question be has reason to know that it exists.
7 A person "knows" or "has knowledge" of a fact if he has actual
8 knowledge of it.
9 (b) A person "notifies" or "gives" a notice or notification
10 to another person by taking steps reasonably calculated to in -
11 form the other in ordinary course whether or not the other
12 actually comes to know of it. A person "receives" a notice or
13 notification when
14 (1) it comes to his attention; or
15 (2) in the case of the landlord, it is delivered at the place
16 of business of the landlord through which the rental agree -
17 ment was made or at any place held out by him as the place
18 for receipt of the tcmmunication; or
19 (3) in the case of the tenant, it is delivered in hand to
20 the tenant or mailed by registered or certified mail to him
21 at the place held out by him as the place for receipt of the
22 communication, or fn the absence of such designation, to his
23 last known place of residence.
24 (c) If the tenant proceeds under this section, he may not
25 proceed under Section 4.101 or Section 4.103 as to that breach.
Conn mvT
The remedies under Sections 4.107 and 5.101(6) are applicable where the
landlord affirmatively acts to interrupt or diminish services, etc., and those
remedies am in addition to the remedies provided in Sections 4.101, 4.103
and 4.104.
26 (d) Rights of the tenant under this section do not arise
27 until he has given notice to the landlord or if the condition
28 was caused by the deliberate or negligent act or omission of
29 the tenant, a member of his family, or other person on the
30 premises with his consent.
1 Semon 4.105. [Landlord's Noncompliance as Defeno
2 Action for Possession or Rent.]
3 (a) In an action for possession based upon nonpayment of
4 the rent or in an action for rent when the tenant is in posses -
5 sion, the tenant may [counterclaim] for any amount he may
6 recover under the rental agreement or this Act. In that event
7 the court from time to time may order the tenant to pay into
8 court all or part of the rent accrued and thereafter accruing,
9 and shall determine the amount due to each party. The party
10 to whom a net amount is owed shall be paid first from the
11 money paid into court, and the balance by the other party. If
12 no rent remains due after application of this section, judgment
13 shall be entered for the tenant in the action for possession. If
14 the defense or counterclaim by the tenant is without merit and
15 is not raised in good faith, the landlord may recover reason -
16 able attorney's tees.
17 (b) In an action for rent when the tenant is not in
18 sion, he may [counterclaim] as provided in subsectiodW
tr
19 but is not required to pay any rent into court.
COMMENT
Article If defines the ohligatiooe of the landlord which the tenant may aa -
force against him (Section 1.105). While Lindsey a. Normet (405 U.S. 56)
holds no principle of constitutional low requires the admission of the habit.
ability defense in a summary proceeding maintained by the landlord against
the tenant, Section 4.105 is consistent with modem procedure reform in per.
mitting the tenant to file a counterclaim or other appropriate pleading in the
summary proceeding to the end that all issues, between the parties may be
disposed of in one proceeding. It is anticipated that upon filing of the minter.
claim the court will enter the order deemed appropriate by him concerning
the payment of rent in order to protect the interests of the parties. See eases
in comment to Section 2.1M W.
10 23
3 ment or Section 2.104, and the reasonable cost of compliance
4 is less than ] S1001. or an amount equal to !one-half] the peri.
5 odic rent, whichever amount is greater. the tenant map re -
6 cover damages for the breach under Section 4.101(6) or may
7 notify the landlord of his intention to correct the condition at
8 the landlord's expense. If the landlord fails to comply within
9 [141 days after being notified by the tenant in writing or as
10 promptly as conditions require in case of emergency, the ten -
11 ant may cause the work to be done in a workmanlike manner
12 and, after submitting to the landlord an itemized statement.
13 deduct from his rent the actual and reasonable cost or the fair
14 and reasonable value of the work, not exceeding the amount
15 specified in this subsection.
16 (b) A tenant may not repair at the landlord's expense if
17 the condition was caused by the deliberate or negligent act or
18 omission of the tenant, a member of his family, or other per -
19 son on the premises with his consent.
CasLMENT
'lbs right of self-help may extend to areas outside of the dwelling. See
SKdon 7.104 and the definition of premises in Section 1.301(9).
SECTION 4.104. [Wrongful Failure to Supply Heat, {Pater,
Hot Water, or Essential Services.]
(a) If contrary to the rental agreement or Section 2.104
the landlord willfully or negligently fails to supply heat, run-
ning water, hot water, electric, gas, or other essential service,
the tenant may give written notice to the landlord specifying
the breach and may
(1) procure reasonable amounts of heat, hot water, run-
ning water, electric, gas, and other essential service during
the period of the landlord's noncompliance and deduct their
actual and reasonable cost from the rent; or
(2) recover damages based upon the diminution in the
fair rental value of the dwelling unit; or
(3) procure reasonable substitute housing during the
period of the landlord's noncompliance, in which case the
tenant is excused from paying rent for the period of the
landlord's noncompliance.
(b) In addition to the remedy provided in paragraph (3)
of subsection (a) the tenant may recover the actual and rea-
sonable cost or fair and reasonable value of the substitute
housing not in excess of an amount equal to the periodic rent,
and in any case under subsection (a) reasonable attorney's
fees.
24 (c) "Notice," knowledge or a notice or notification received
25 by an organization is effective for a particular transaction
26 from the time it is brought to the attention of the individual
27 conducting that transaction. and in any event from the time
28 it would have been brought to his attention if the organization
29 had exercised reasonable diligence.
C0NLN NT
This section is adapted from Section I.254t"gl of the Uniform Commercial
Code. Section 1.302 imposes the obligation of good faith and is, of course, ap-
1,Hcable to this section.
PART IV
GENERAL PROVISIONS
1 SECTION 1.401. ]Terms and Conditions of Rental Agree -
2 ment.]
3 (a) A landlord and a tenant may include in a rental agreO
4 ment terms and conditions not prohibited by this Act or other
5 rule of law, including rent, term of the agreement, and other
6 provisions governing the rights and obligations of the parties.
7 (b) In absence of agreement, the tenant shall pay as rent
8 the fair rental value for the use and occupancy of the dwelling
9 unit.
10 (c) Rent is payable without demand or notice at the time
11 and place agreed upon by the parties. Unless otherwise agreed,
12 rent is payable at the dwelling unit and periodic rent is pay -
13 able at the beginning of any term of one month or less and
14 otherwise in equal monthly installments at the beginning of
15 each month. Unless otherwise agreed, rent is uniformly appor-
16 tionable from day-to-day.
17 (d) Unless the rental agreement fixes a definite term, the
17 tenancy is week -to -week in case of a roomer who pays wee
18 rent, and in all other cases month-to-month.
COMXCn T
In absence of an agreement for a definite term of lease, the tenant has a
term of month-to-month without regard to the payment of rent weekly, month.
ly or otherwise, and a roomer who pays rent for longer intervals than week -to -
week has a month-to-month term. An to termination of such tenancies, see
Sections 4.301(a) and 4.301(b).
1 SECTION 1.402. [Effect of Unsigned or Undelivered Rental
2 Agreement.]
3 (a) If the landlord docs not sign and deliver a written rent -
4 al agreement signed and delivered to him by the tenant, ac -
5 ceptance of rent without reservation by the landlord gives the
22 11
6 rental agreement the same effect as if it had been signed and
7 delivered by the landlord.
8 (b) If the tenant does not sign and deliver a written rental
9 agreement signed and delivered to him by the landlord, accep-
10 tance of possession and payment of rent without reservation
11 gives the rental agreement the same effect as if it had been
12 signed and delivered by the tenant.
13 (c) If a rental agreement given effect by the operation of
14 this section provides for a term longer than one year, it is ef-
15 fective for only one year.
COMMENT
The subsections above apply to transactions in which a written rental agree-
ment has been signed aid delivered by either landlord or tenant, the parties
have agreed on terms, and the defect is solely the nbsence of a signature.
Delivery thus meats legal rather than physical delivery alone. Thus Imowl.
edge or notice of the signing of the rental agreement is required. These sub.
sections do not apply to applications for leases or similar writings regarded
by the parties m prelludnsry to written agreements.
1 SEMON 1.403. [Prohibited Provisions in Rental Agree -
2 ments.]
3 (a) A rental agreement may not provide that the tenant:
4 (1) agrees to waive or forego rights or remedies under
5 this Act;
6 (2) authorizes any person to confess judgment on a
7 claim arising out of the rental agreement;
8 (3) agrees to pay the landlord's attorney's fees; or
9 (4) agrees to the exculpation or limitation of any lin.
10 bility of the landlord arising under law or to indemnify the
11 landlord for that liability or the costs connected therewith.
12 (b) A provision prohibited by subsection (a) included in a
13 rental agreement is unenforceable. If a landlord deliberately
14 uses a rental agreement containing provisions known by him
15 to be prohibited, the tenant may recover in addition to his
16 actual damages an amount up to [3] months' periodic rent
17 and reasonable attorney's fees.
COMMENT
Rental agreements are often executed on forms provided by landlords, and
some contain adhesion clauses the use of which is prohibited by this section.
Section 2.415 of the Uniform Consumer Credit Code provides "a buyer or
lessee may not authorize my person to confess judgment on a claim arising
out of a consumer credit We or consumer lenses' The official comment to this
section states "This section reflects the view of the great majority of states in
prohibiting authorization to confess judgment." Similarly, clauses attempting
to exculpate the landlord from tort liability for his men wrong have been de-
clared illegal by statutes in some states (compare Mass. G.L. Chapter 186,
24 a member of his family, or other person on the premises
25 with his consent.
COMMENT
Claims arising under this section if disputed in good faith may be settled
by agreement (see Section 1.106). However, a prior settlement will not pr -
vent a termination under Section 4.101(x) (2).
26 (b) Except as provided in this Act, the tenant may recover
27 actual damages and obtain injunctive relief for any noncom -
28 pliance by the landlord with the rental agreement or Section
29 2.104. If the landlord's noncompliance is willful the tenant
30 may recover reasonable attorney's fees.
31 (c) The remedy provided in subsection (b) is in addition
32 to any right of the tenant arising under Section 4.101(a).
33 (d) If the rental agreement is terminated, the landlord 11
34 return all security recoverable by the tenant under Seam
35 2.101 and all prepaid rent.
COMMENT
Remedies available to the tenant pursuant to Section 4.101 are not exclu-
sive (see Section 1.103). A duly to mitigate damages exists under Section
1.105. As to rights of third parties, we comment under Section 1.105.
1 SEcTioN 4.102. [Failure to Deliver Possession.]
2 (a) If the landlord fails to deliver possession of the dwell -
3 ing unit to the tenant as provided in Section 2.103, rent abates
4 until possession is delivered and the tenant may
5 (1) terminate the rental agreement upon at least 151
6 days' written notice to the landlord and upon termination
7 the landlord shall return all prepaid rent and security; or
8 (2) demand performance of the rental agreement by the
9 landlord and, if the tenant elects, maintain an action for
10 possession of the dwelling unit against the landlord o&
11 person wrongfully in possession and recover the actual
12 ages sustained by him.
13 (b) If a person's failure to deliver possession is wfllful and
14 not in goal faith, an aggrieved person may recover from that
15 person an amount not more than [3] months' periodic rent or
16 [ threefold I the actual damages sustained, whichever is great -
17 er, and reasonable attorney's fees.
COMEENT
"Aggrieved pemn" includes n landlord entitled to proceed under Sectiom
2.103 and 4.301 ,c) as well as a tenant entitled to possession.
1 SrcrtoN 4.103. [Self -Help for Afinor Defects.]
2 (n) If the landlord fails to comply With the rental agree -
12 21
17 (2) as permitted by Sections .1.202 and 4.203(6); or
18 (3) unless the tenant has abandoned or surrendered the
19 premises.
CONMr.NT
Special remedies to landlord and tenant for ahus• of rights of access are
provided by Section 4.302. As to wrongful entry it, take possession sec See-
tione 4.107 and 4.207.
1 SECTION 3.104. [Tenant to Use and Occupy.] Unless other -
2 wise agreed, a tenant shall occupy his dwelling unit only as a
3 dwelling unit. The rental agreement may require that the ten -
4 ant notify the landlord of any anticipated extended absence
5 from the premises [in excess of [71 dnys] no later than the
6 first day of the extended absence.
ARTICLE IV
REMEDIES
PART I
TENANT REMEDIES
SECTION 4.101. [Noncompliance by the Landlord — In
General.I
(a) Except as provided in this Act, if there is a material
noncompliance by the landlord with the rental agreement or a
noncompliance with Section 2.104 materially affecting health
and safety, the tenant may deliver a written notice to the land-
lord specifying the acts and omissions constituting the breach
and that the rental agreement will terminate upon a date not
less than [30] days after receipt of the notice if the breach is
not remedied in [14] days, and the rental agreement shall ter-
minate as provided in the notice subject to the following:
(1) If the breach is remediable by repairs, the payment
of damages or otherwise and the landlord adequately rem-
edies the breach before the date specified in the notice, the
rental agreement shall not terminate by reason of the breach.
(2) If substantially the same act or omission which con-
stituted a prior noncompliance of which notice was given
recurs within [6] months, the tenant may terminate the
rental agreement upon at least [14 days') written notice
specifying the breach and the date of termination of the
rental agreement.
(3) The tenant may not terminate for a condition caused
by the deliberate or negligent act or omission of the tenant,
20
Sec. 15; Nex Turk Real Prolx-m Ltw Section 234. and 1!1 Am. Stat., Chap.
ter 80, Section l5a (Smith Hurd, IARtt. Such proruion_. sten though un.
enforceable at law may neverthely� preludse and iniure the rights and
interests of the uninfornnvl tenant who may. for example. surrender or waive
rights in settlement of an enfum•able claim against the landlord for dimngea
arising from the landlord's negligence.
Attorney's fees under rho Act mat- K, nc erted agai^s: either the landlord
or tenant as enumerated in the Act (see. for example. Sections 1.403(6);
2.101 (c): 4101(6): 4.105(x) ). The right to recover attome 's fees against the
tenant, hmvecer, must arise under the Statute. not by contract of the parties.
1 SECTION 1.404. [Separation o/ Rents and Obligations to
2 Maintain Property Forbidden.] A rental agreement, assign -
3 ment, conveyance, trust deed, or security instrument may not
4 permit the receipt of rent free of the obligation to comply with
5 Section 2.104(a).
CoSutesT
The obligation of the landlord to maintain fit premises in accordance wa
Section 2.104 (a) and the rights and remedies of the tenant under Artidar II
and IV cannot be defeated or thwarted by the assignment of rents.
ARTICLE II
LANDLORD OBLIGATIONS
1 SECTION 2.101. [Security Deposits: Prepaid Rent.]
2 (a) A landlord may not demand or receive security, how -
3 ever denominated, in an amount or value in excess of [11
4 month[s] periodic rent.
5 (b) Upon termination of the tenancy property or money
6 held by the landlord as security may be applied to the pay -
7 ment of accrued rent and the amount of damages which the
8 landlord has suffered by reason of the tenant's noncompliance
9 with Section 3.101 all as itemized by the landlord in a written
10 notice delivered to the tenant together with the amount
11 1141 days after termination of the tenancy and delivery'
12 possession and demand by the tenant.
13 (c) If the landlord fails to comply with subsection (b) or
14 if he fails to return any prepaid rent required to be paid to
15 the tenants under this Act the tenant may recover the prop -
16 erty and money due him together with damages in an amount
17 equal to [twice) the amount wrongfully withheld and reason -
18 able attorney's fees.
19 (d) This section does not preclude the landlord or tenant
20 from recovering other damages to which he may be entitled
21 under this Act.
22 (e) The holder of the landlord's interest in the premises
13
I .
23 at the time of the termination of the tenancy is bound by this
24 section.
CO\SMETT
Widely varying legislation has been enacted affecting security deposits:
California—Chapter 1317, Acts of 1970• West. Cal, Civ. Code. Sec. 1951.
Colorado—H.B. No. 1230, Acts of 1971• Colo. Rev. Stat. Am.. Ch. 58
(Forcible Entry and Detainer). Sec. 1.26.28.
Delaware—ii.B. 433• AW of 1971, Del. Code Ann. (Iaadlord-Tenant)•
Title 25, Ch. 51, Sec. 5912.
Florida—Chapter 70-360, Acta of 1970, Fla. Stat, Ann. Civil Practice and
Procedure. Ch. 83 (Landlord and Tenant), Sec. 83.261.
Illinois—P.A. 77.706, See 3, Acts of 1971, LII. Stat. Ann Ch. 74 (Inter.
est). Sec. 91.93.
Maryland—Chapter 633, Sec. 1 of Acts of 1969, as amended by Chapter
291 of Acts of 1971• Md. Ann. Code. Art. 53 (Landlord and Tenant).
Sec. 4143.
Massachusetts—Chapter 244• Sec. 1 of Acts of 1969• as amended by Chap-
ter 666, Sec. 1 of Acts of 1970, Mass. Gen. Laws Ann., Ch. 186 (Title
to Real Property). Sac.15B.
Minnesota—Chapter 764 of Acts of 1971, Minn Stat. Ch. 604 (Landlord
and Tenant). Sac. 504.19.
New Jersey—S.B. 903, Acts of 1970, N.J. Rev. Stat., Sec. 2A: 46-8.
New York—Chapter 680• Sec. 70 of Acta of 1967, as amended, N.Y. Gen
Obligation Laws. Sec. 7.103 and 7.105.
Penruylvanie—Pa. Stat Ann, Title 68 (Real and Personal Property).
Sec. 250.512.
These statutes generally require a landlord to retum security deposits to
tenants within a specified time period• amount for his claim to any part of
the security deposit and provide for penalty in the event landlord fails to
comply.
Iifficultica in arlminfstration and accounting of security deposits have led
some authorities to advocate their abolition (sce Interim Report Landlord
and Tenant Law Applicable to Residential Tenancies, Ontario Law Reform
Commission (19681 p8a. 21 and 28). The Uniform Act preserves the security
deposit but limits the amount and prescribes penalties for its misuse.
Subsection (e) of this section resolves a split of authority among the stater
See 1 ALP. Section 3.73• no 9-15. Note that under Section 2.105(x) of the
Ad the original landlord is bound.
1 SECTION 2.102. [Disclosure.)
2 (a) A landlord or any person authorized to enter into a
3 rental agreement on his behalf shall disclose to the tenant in
4 writing at or before the commencement of the tenancy the
5 name and address of
6 (1) the person authorized to manage the premises; and
7 (2) an owner of the premises or a person authorized to
8 act for and on behalf of the owner for the purpose of service
9 of process and receiving and receipting for notices and de -
10 mands.
14
1 SECTION 3.102. [Rules and Regulations.)
2 (a) A landlord, from time to time, may adopt a rule or reg -
2 ulation, however described, concerning the tenant's use and
4 occupancy of the premises. It is enforceable against the tenant
5 only if
6 (1) its purpose is to promote the convenience, safety, or
7 welfare of the tenants in the premises, preserve the land.
8 lord's property from abusive use, or make a fair distribution
9 of services and facilities held out for the tenants generally;
10 (2) it is reasonably related to the purpose of which it L-
11
11 adopted;
12 (3) it applies to all tenants in the premises in a fah
13 manner;
14 (4) it is sufficiently explicit in its prohibition, direc
15 or limitation of the tenant's conduct to fairly inform h:
16 what he must or must not do to comply;
17 (5) it is not for the purpose of evading the obligations o:
18 the landlord; and
19 (6) the tenant has notice of it at the time he enters inti
20 the rental agreement, or when it is adopted.
21 (b) If a rule or regulation is adopted after the tenant en
22 ters into the rental agreement that works a substantial modi
23 6cation of his bargain it is not valid unless the tenant con
24 seats to it in writing.
COMMENT
Under Section 1.301(ll) the rental agreement includes valid rules oar
regulations.
1 SEcrlox 3.103. [Access.)
2 (a) A tenant shall not unreasonably withhold consent tt
3 the landlord to enter into the dwelling unit in order to floc
4 the premises, make necessary or agreed repairs, deco
5 alterations, or improvements, supply necessary or agreed sery
6 ices, or exhibit the dwelling unit to prospective or actual put
7 chasers, mortgagees, tenants, workmen, or contractors.
8 (b) A landlord may enter the dwelling unit without con
9 sent of the tenant in case of emergency.
10 (c) A landlord shall not abuse the right of access or use i
11 to harass the tenant. Except in case of emergency or unless i
12 is impracticable to do so, the landlord shall give the tenant a
13 least [21 days' notice of his intent to enter and may ante
14 only at reasonable times.
15 (d) A landlord has no other right of access except
16 (1) pursuant to court order;
19
COMMENT
This section relieves a landlord, unless otherwise agreed, from liability un.
der the rental agreement and this Act as to events occurring after a good
faith We and conveyance to a bona fide purchaser and after written notice
to the tenant of the conveyance except as to security recoverable under Sm.
tion 2.101 and all prepaid rent As between the original landlord and tenant,
it is intended that the loss for failure to amount for security and prepaid rent
if recoverable should fall upon the landlord who. in contrast to the tenant,
can take steps to protect the integrity of the security and prepaid rent account
at the time of sale. The landlord for the time being is liable for compliance
with the rental agreement and this Act. See definition of "landlord" in Sec.
tion 1.301(5). See also Sections 1.404 and 2.1o5(a).
9 (b) Unless otherwise agreed, a manager of premises that in -
10 dude a dwelling unit is relieved of liability under the rental
11 agreement and this Act as to events occurring after written no -
12 tice to the tenant of the termination of his management.
ARTICLE III
TENANT OHLIGATioNs
1 SECTION 3.101. [Tenant to Maintain Darning Unit.] A ten.
2 ant shall
3 (1) comply with all obligations primarily imposed upon
4 tenants by applicable provisions of building and housing
5 codes materially affecting health and safety;
6 (2) keep that part of the premises that he occupies and
7 uses as dean and safe as the condition of the premises
8 permit;
9 (3) dispose from his dwelling unit all ashes, garbage,
10 rubbish, and other waste in a dean and safe manner;
11 (4) keep all plumbing fixtures in the dwelling unit or
12 teed by the tenant as dean as their condition permits;
13 (5) use in a reasonable manner all electrical, plumbing,
14 sanitary, heating, ventilating, air-conditioning, and other
15 facilities and appliances including elevators in the premises;
16 (6) not deliberately or negligently destroy, deface, dam -
17 age, impair, or remove any part of the premises or know -
18 ingly permit any person to do so; and
19 (7) conduct himself and require other persons on the
20 premises with his consent to conduct themselves in a man -
21 nor that will not disturb his neighbors' peaceful enjoyment
22 of the premises.
CakoeNT
This section, the converse of Section 2.104, establishes minimum dutlas of
tenants consistent with public standards of health and safety.
11 (b) The information required to be furnished by this sec -
12 tion shall be kept current and this, section extends to and is en -
13 forceable against any successor landlord. owner, or manager.
14 (c) A person who fails to comply with subsection (a) be -
15 comes an agent of each person who is a landlord for:
16 (1) service of process and receiving and receipting for
17 notices and demands; and
18 (2) performing the obligations of the landlord under this
19 Act and under the rental agreement and expending or mak-
20 ing available for the purpose all rent collected from the
21 premises.
COMMENT
This section requires disclosure to the tenant of names and addressee of
persons who (a) have power to negotiate, make repairs, etc, in the operation
of the premises: (b) are empowered to receive service of notice and p
which binds all of the owners. In the absence of such diadcaure the pe
collecting the rent shall be deemed to have the authority to accept notices
and service and to provide for the necessary maintenance and repairs.
The purpose of this section is to enable the tenant to proceed with the ap.
propriate legal proceeding, to know to where complaints must be addressed
and, failing satisfaction, against whom the appropriate legal proceedings may
be instituted. Rights under this section are additional to those presided in
Section 1.203.
Stat. 1972, Chapter 493 inserts into Chapter 143 of Massachusetts General
Iaws a prevision requiring the patina of a non-resident owner's name. ad.
dress and telephone number as well as the name, address and telephone num.
bar of any non-resident manager or agent subject to a fine of not more than
$50.00 for each day of violation. However, this statute does not make avail.
able to the tenant the remedies presided in the Uniform Act
1 SECTION 2.103. [Landlord to Deliver Possession of Dwelling
2 Unit.] At the commencement of the term a landlord shall de -
3 liver possession of the premises to the tenant in compliance
4 with the rental agreement and Section 2.104. The landloa
5 may bring an action for possession against any person wro
6 fully in possession and may recover the damages provided in
7 Section 4.301(c).
COM1reh-r
Thus, the landlord may proceed directly against a squatter. The teal
may also, pursuant to Section 4,102(a), proceed with an action for poeaadaa
Whom appropriate such actions may be in summary procE dings. It is thus
passible that both landlord and tenant may have the right of action against
third parties wrongfully in possession of the premises.
1 SECTION 2.104, [Landlord to Maintain Premises.]
2 (a) A landlord shall
3 (1) comply with the requirements of applicable building
18 15
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and housing codes materially affecting health and safety;
(2) make all repairs and do whatever is necessary to put
and keep the premises in a fit and habitable condition;
(3) keep all common areas of the premises in a clean and
safe condition;
(4) maintain in good and safe working order and condi-
tion all electrical, plumbing, sanitary, heating, ventilating,
air-conditioning, and other facilities and appliances, includ-
ing elevators, supplied or required to be supplied by him;
(5) provide and maintain appropriate receptacles and
conveniences for the removal of ashes, garbage, rubbish, and
other waste incidental to the occupancy of the dwelling unit
and arrange for their removal; and
(6) supply running water and reasonable amounts of hot
water at all times and reasonable heat [between [October
1] and [May 111 except where the building that includes
the dwelling unit is not required by law to be equipped for
that purpose, or the dwelling unit is so constructed that heat
or hot water is generated by an installation within the ex-
clusive control of the tenant and supplied by a direct pub-
lic utility connection.
(b) If the duty imposed by paragraph (1) of subsection
(a) is greater than any duty imposed by any other paragraph
of that subsection, the landlord's duty shall be determined by
reference to paragraph (1) of subsection (a).
Co.%nM\T
Vital interests of the parties and public under modem urban conditions est
Quiro the proper mainterance and operation of housing. It is thus necessary
that minimum duties of landlords and tenants be set forth Cr memlly duties
of repair and maintenance of the dwelling unit and the premises am imposed
upon the landlord by this section. Major repairs, even access, to essential syn
tems outside the dwelling unit am beyond the capacity of the tenant. Can.
versely, duties of deanlimss and proper use within the dwelling unit are
appropriately fixed upon the tenant (see Sections 3.101 and 3.102).
29 (c) The landlord and tenant of a single family residence
30 may agree in writing that the tenant perform the landlord's
31 duties specified in paragraphs (5) and (6) of subsection (a)
32 and also specified repairs, maintenance tasks, alterations, and
33 remodeling, but only if the transaction is entered into in good
34 faith and not for the purpose of evading the obligations of the
35 landlord.
36 (d) The landlord and tenant of any dwelling unit other
37 than a single family residence may agree that the tenant is to
38 perform specified repairs, maintenance tasks, alterations, or
39 remodeling only if
40 (1) the agreement of the parties is entered into in good
41 faith and not for the purpose of evading the obligations of
42 the landlord and is set forth in a separate writing signed by
43 the parties and supported by adequate consideration;
44 (2) the work is not necessary to cure noncompliance with
45 subsection (a)(1) of this section; and
46 (3) the agreement does not diminish or affect the obli-
47 gation of the landlord to other tenants in the premises.
48 (e) The landlord may not treat performance of the sepa-
49 rate agreement described in subsection (d) as a condition to
50 any obligation or performance of any rental agreement.
CO\LVENT
This section follows the warranty of habitability doctrine now
in the jurisdictions of
California—Hinson v. Delis, 26 C.A. 3d 62.
Washington, D.C.—Jasins u. First National Realty (U.S.C.A. D.C. 1970)
428 F, 2d 1071.
Wisconsin—Pines v. Permian, (1961) 111 N.W. 2d 409.
New Jersey—Resta Realty Corp. u. Cooper, (1969) 53 N.J. 444.
Illinois—Jack Springs Inc. e. Little, (1972) 280 N.E. 2d 0208.
Hawaii—Lemler v. Breedin, (1969) 462 P. 2d 470.
Michigan—Rome r. Walker, (1972) 196 N.W. 2d 850.
New Hampshire—Kline v. Burns, (1971) 276 A. 2d 258.
Colomdo—Guesenbury v. Patrick, (March 1972) C.C.H. Pov. L. Rptr.
Sec. 15,803.
Georgia—Geevrns r. Gray, (April 1972) C.C.H. Pov. L. Rptr. Sec. 15,412.
Standards or habitability dealt with in this section am a matter of public
police power rather than tbe contract of the parties or special landlord•terant
legislation. This section establishes minimum duties of landlords consistent
with public standards. Generally duties of repair and maintenance of the
dwelling unit and the premises are imposed upon the landlord by this section.
Major repairs, earn access, to essential systems outside the dwelling
beyond the capacity of the tenant. Conversely, duties of cleanliness and
er use within the dwelling unit are appropriately fixed upon the tenant (sec
Sections 3.101 and 3.1002).
Except as specifically provided, these obligations may not be waived (See.
tion 1.403).
1. SECTION 2.105. [Limitation of Liability.]
2 (a) Unless otherwise agreed, a landlord who conveys prem -
3 ises that include a dwelling unit subject to a rental agreement
4 in a good faith sale to a bona fide purchaser is relieved of lia-
5 bility under the rental agreement and this Act as to events oc-
6 curring after written notice to the tenant of the conveyance.
7 However, he remains liable to the tenant for all security recov-
8 erable by the tenant under Section 2.101 and all prepaid rent.
16 17
WARREN v. CITY OF PrIJI,t.DM,PH1A
CII„,lo 1:7 did sol
testimuuy that the urn -wit was cn-
o•rcd.”
'there is no decision in our app,r11me
Null tepid ls, no slah:ncnt ill the law of
torts, un luup,,,.iliou it, the whule aunnry
of Ingic which says that a nun wil 1111114 be
nnered hrcaunr a I'n'still is out making at
the I:rnnnd when he is ad,urtl to rater a d,ert.
Ilaviug Iran•el.rd s11ecrssfully Ill. appm;OAl
trading to a door, any nnneal I naris b, in,;
has the Ii;;lu to assume that be may naw
open lite dour withuut mishap. If one is
In enter a dour he looks fur the knob, or, if
it inn knoldess push dooq hu looks for the
place :gtainst which he is to pu:.h lit order to
apply the necessary pressure to force open
the duur. What, if as one i:'. about In push
npen a door lie maks w the ground and
then cuts his hand rat broken glass in the
door?
It slay well he IIIA ill Dae,rllirv; lhluugh
a !u:,k,•.in[, sl,•d it ra, o11,• .11"Old keep his
•yt on [lie grot•wi •Hill, Ill( hope of catrh-
ing III,- glild of a leptih's skin before the
reptile stril:,•s with a bial Ihruel, hat in the
middle of a city the size of Philadelphia, at
the eutra nce to a busy drug store, which
offers no warning of pi(fails, a confiding
cmlomer cannot be bhnocd for assuming
that his fuutway will be clear of snakes and
mucous unbuttled beverages.
When Mrs. Hess arrived at the door, she
did the most natural thing; in the world.
She reached forward to open the door and
pass through it. Site explained what hap-
pened:
"I wailted to net a hold of the door
to go in and just as I did lllat,.l slipped
and fell."
In falling site broke her and. She went
into the court for a redress of grievance.
She was non -suited. Site then reached for
the dour of this Court and apparently
slipped and fell again. I would lift her to
her felt and offer her an upportunity to
presort her case to the jury which is
equipped to hear and evaluate her case, a
0
Pa. 703
jury Inrsided over by a jndgv who will not
rcfusr In listen to auunn vs I'malse he
fears that if hr lislvus, Ile may I%car sumo-
thing %%Inch will "complica V." lbe case.
o i m.0—ins.
3S7 Va.:11;2
John WAIIIiE14 unit Proputy Owners Assn•
clatlnn of Phlladelphla, bac., Sinton Sallie
and !;qulh Phlladelphla lically (loard,
Raphael U fner and West Philadelphia
Heally Unard, George Braumag, Jr., and
Phlladelphla Board of Itcadlors and Phlla.
delphla liral Estate floard, Inc., Juseph
A. May, Jr., and North Philadelphia Real.
ly Maid.
V.
CITY OF I'll ILAULt.PN Its, Appellant.
snpnome Court ur 1i•nlls)Iralda.
Dec. 10, 111"'G.
01,11,1011 Der. Y.p, ]%,,0.
Hrhr;111116, Denied Der. _v, 1p5G.
Suit in equity to enjoin cofurcentenl
of antr•nded rent conlrOl ordinance on
ground that it was 11nrunslilntional and
void. The Court of Cmmnnn fleas, %u. 5
of the Cnnnty of Philadelphia, as of De-
cember 'Peru, 1755, No. 7857, Wcinrott,
J., rnlered decree for plaintiffs and city
appealed. The Supreme Cuull, NO. 131,
Jnnntry Term, 1757, Chidsey, J., held that
evidence sustained fntdiu,s tical to enter.
geney horning shoe D,ge existed in city
which world have juslified enaclmenl of
real milml ordinance in qumliut, and that
evidence was accordingly sufficient tit over-
come presumption of validity of nrdinance
and of legishuive finding.: of existence of
encrgenry, and to jnslify emlrhniml than
amending ordinance was invalid, arbitrary
and void.
Order confirmed.
701 h'I, 127 ATL1NTIC Itla'URTUR, gd IMMUN
L Landlord and Tenant C 1203.11 Opouonl to be fdrd later.
Rrm crnilnd which inf 1 iu;p... Ignnl cull
st it 111 if, llaI li;{IIs of owncls of pruptlly
uulst I,c L:rsrd un public (., ip,'u•.y of un• r-
gency: exvrciec of p„lirc power in this re-
I:art is sustained only wham emergency
ov�b.
2. Munlelpal Cerpnrailens C-,12214)
I❑ >nil ill equity' to enj,uu ,'Iliol'c,nn nl
oftuIll u,br,l ,rut cull rel o1,li3l:mcc on
gi and that it a'as unrno•dil ill ional alai
void, vcidrucc s11,1;6114 11 finding that nu
rnlell:racy bnusiel: slnnlag'. r•b,ird in city
which v: mild have jusldn'd Vilailuu'lll of
not routed nnlivanre in fill. tido, :int
that evid,uce was acculdiu;:lysullicirnl to
ovrrrolnr pref.nlnplirnl of vAhllny of urdi-
uanux• and of legiad;:tive findiuns of Cxi,t-
cncc of (owrprncy. and jnstifn'd rnn(lusion
that aununlCd Milin.ncc was im alid, ar-
bitrary and void.
1)avid Berger, City S,dicitra', I. Jerome
Stern, Asst. ('ity Sulieitur, Levy Anderson,
first I)cputy City Solicitor, Philadelphia,
for appellant.
1). Arthur 91. go7incr, Slerling Magazill-
eq Steel S Levy, Philndclphia, for Phila-
delphia 11d. of Uc:dlurs.
Morris 11. Levitt, Philadelphia, for Simon
Sagle A Su. Philadelphia Really Ill].
Simon I.clivn1, I'll il:ohcl fill ia, for North
Philadelphia Really ]:d.
Joseph Keough, Philadclpllia, for West
Pi iladdphia Realty U. K President.
Paul Brandeis, Philadelphia, for John
Warren and Property Owners Assn.
Before STERN, C. J., Ind JONES,
I1Ii1.1., CI'IIDSUY, hIUSMANNO and
ARNOLD. JJ. .
1'ER CURIAM.
The decree of the court below is affirmed,
the parties to bear their respvrtive costs.
M
CII I lt•UY, Jalstice.
An oidn,aucc I.uown as the "I'll 1131 elPhia
Rwl Control (hdinaore• of 1035" who'h im-
pie.r,l bwpur.iiy euutlois over reels and
eviet"'lis ill r, hitt housing, (.1,11ed nu Jan.
list),31, 1956. Oil January 26, IWI, the
I ay Couneil pass, ,! an ordiu.mce approved
by ill.- Nlayur oil January 31, 1956 as ;if,
:nnrmbnrnt to the ,rut Cnuuul ordinance
of 1955, Cxh'I1,1ing Ill• jolfill lili0ll of Con.
111.15 to Jatmaiy 31, 1957. Clanniug that no
,ynefg, ilc'y existed ill housing .acconloluda.
tions at lila time of the cnautuunll of the
nuu•n•hn; ordinancu of 1956 juslifymg an
I %1(ll full of rent caulrol, plaintiffs, individ-
ual laxpayrls of the city, the I'roporty
0micnt As-alciation of Plliladrlpllia, IoC.,
a ml fico real estmr boards filed a coniplaint
in equity against lir defendant City of Phil-
a,bdphia scehiug to enjoin the enforcement
of the rent control ordinance as ;,incl ted, un
the ground that it was uneuuwultiou;.l and
void. Defendant fled an answer and new
matter to which plaiuliffs IilCd a rcpl-v.
)learnt,^, was livid before I'residenl Judge
Alt ssam11'oni sllling as chancellor who held
Thal it,, rmcigeney in houning existed, ad-
ju,lged the aulrndrd oldwance invalid, ar-
bitr:t'y and void and rr^.tabard its enforcC-
nlcnt. 'I lie City iil:'d cxcrpuons to the
findiul:s of fact, cauvinsions of law and dc-
erec nisi of the chancellor. These excep-
tions were disnfisecd by the court en bane
which a0 fined the decree nisi. This ap-
peal followed.
In Warren v. City of PhiladAphia, 3S-'
Pa. X,'O, 115 A.2d 218, taxpayers elmllalged
on various grounds the Ponver of the City to
enact the rent control ordinance of 1961
Ind the case came before us on motion for
judgment on the phcadiugs. Speak%7
through Mr. Justice Arnold, we held 111-1:
the. City could, by ordinance, control rents
and tvictions to meet nn rear rgvney hoorinl:
sburtage affecting the public 11rn1111, safety
and welfare, as an rxen'ise of its police
power. We did nut pass upon the merits of
the enntrovcrsy',
There was not s
and comphla :.
on the merits.
an emergency c
tion date of lh, :.
ter became Ir.-.:.
The qur:tar.•,
low and onsv ;'.
peal is syhclhu
plaintiff. that :e.
Igc cxielcd w:,.
presumption of v
Ity of the Rent 1.
nary 31, 1956, ,,1,
was such cs ideo,
the presumption C
conditions rel 1p,
(inns fit the Crr
redly stated in l:
chancellor and th•
hcnsive and v vi! -
ognized and fur's'
lion of colhtIL:::.
must ordinarily Lc
iugs set forth ill :1
nevertheless dol-.::
ill question caul•!
unanimously of 11
In Gambonc v.
5.17, at page 551,
this Court,
Justice Stern,
footnote in sup;':
fly a host of :•1::::
alilc, it has barn
ports to be an cs
cr must nut he 1
pressive or p.1t, •.'
of life case, ami
must have a -ell
the objects sa'•
the guise of ;.a'
the legislator,
free with pri%siv
usual and men
lawful uccupat:w
ally parliruhar'I'
Latta to the
in the mens 1t :.
177 Ald--as
W AItIIrN v. Ol'fY 01' 1'1fILAllF1,PI11A
Pa- 705
,I ... .... I rl A.: n 707
Ihr amu uv rrsv, wd dil tee ud a pour, II1 ndn, rxel rise of the polite power, is (lite for the
9'brre a•as but w(heirnt uunr In undertake judguu:til, in Ihr Lrnl iu n;u1cc, of tllc tiv-
its
and rumplite a hra,iug in tile court b,dosv uctk ing, branch of the It
on the ulrrits, Partiad.I sly the is•.or sch,.Iher ford lvtcruimuli„ti is for the cuurt�”
an ruu•rgency existed, bvforc lin• rxpira-
tian lade of the 1755 ordinance a11,1 the n,at-
ter became moot.
'I'hc qac+tion prrsr"ted to if,, root( Lr-
Inw au,l now hebrt•• ns in dn• pit^avl ap-
pr:J is whether the evidrncc addnrrl Ly the
plaintiff, 111M no Inaogcocy. lamvn;: r.hort•
age existed w:", su(li,icnl to orcrcomc the
presnugltioo of constitutionality and valid-
ity of the Rent Control Ordlmmce of J:uo-
uary 31, 1956, rat', staliu;; it in :umthrr furan,
was such a•vidcnee suff¢irnt In ,Vrrrontc
the presumption that the alleged emelgenr-y
conditions relating In housing acrnnunoda-
tious in the City of I'hiladtlphwere ere enr-
rcrlly stated in till. Ordimwce. Roth tile
chancellor and the court cit Lame. it, Mulpre.
hetsivc lull wclb cansidcrcl opiui(lvs lec-
oguim"I and fully cunsid"Ic.] the pnvsnngl-
tiou of rnu•,ti"di„uobty, all till n',plrl that
unut orilinmily he given In Icgial:dive fit d
ings set ful'th in :t statute nr ordinance, 'I t
nevcrlheless dcler,oined that Ihr or•linal
in question ennW not he upheld. \Ve are
unanimously of the salute opinion.
In Gamho"c v. Coullormweahh, 375 Pa.
547, at page 551, Rll A 2d 634, at page 636,
this Consist.5pexl:iug through Mr. Chief
Juslice Slcrn, said, citing many ca=ts ,in
+
inounute in support of the text:
Ify a host of authorities, Federal and Slatc
alike, it has Leen held that a law which pur-
ports to hr an exercise of the police pow-
er must not he unreasonable, unduly nP-
pressive or. patently beyond the necessities
of the case, and the morns which it ctnflloys
most have a real and suhstanlial relation to
the objects sought to be attained. Undo
the guise of protecting the public interest
the legislature maty slot arbitrarily inter
fere with private business or impose un
,,still and unnecessary restrictions upo
lawful occupations. The question whethe
any particular statutory provision is so rc
laled to the public gnod and sit r•:nnrnhl
in lite mean, it prescribes as to justify ill
177 A.7d-/6
Ill Since tilt removal n( Prlatal rturr-
gcuey rrut unnml, dm City of 1'lul:nlrl-
phia :oaiug hwally los imposed such up -111
Rent euldrul which impinges upl
till nnlsliuni(lual tight+ of the uwm9' Id
pn.pr rly nned tic basil "pull a puhhc rxi-
gvncy o, emergency, The exercise of tile
poli. pnw•er ill this rtgard has Leen sus..
taiurd only w1u•reani euungeoq• exists: Sec
\\'uuds v. I:layd \\'. Miller (:o., 333 U.S.
134, 68 S.Ct. 421, 72 I..E'd. 596; Illuck v.
l lirsh, 25US.
6 . 135 ,
, 41 .Cts •158, 65 1..1•:d.
865; Malc,is Brow” lloldiug Gnupany,
Ing., V. Feldman, 256 U.S. 170, 41 S.Ct. 465,
65 L.lid, lt77, In Se:,Ccia v. (till Forge
Borough, 373 Pa. 161, TI AZI 563• we
slated that :,n rmrlgrney may he dellned
as ' . - • a'114.1,11 Ile rmcxpr do' CV(
which crrNc•. a o mp"larily daugWIlli rl.n-
dilinn usually In C,s%it:,tlitff nmm•dlale or
quick act ion.
• • I, and that "
Ordinary crnulitious or cnstonuarily cs-
isting Conditions :Ire not culrrgeuces.
• •', 1)ctrrntinativc of the question
here involved is the itoc of fuel whether
at the time of the adoption of the 1751
aluendmeut to lite 1955 ordinance a housing
emergency existed in the City of Philadel-
phia.
The evidence introduced before the chan-
cellor chiefly pertained to the vacancy r:lc
of habitable dwellings. Joseph Turchi, As-
sistant 14ousing Coordinator of the City,
testified to the effect that 5'0 is a nunnld
and desirable vacancy rate. It was stipu-
lated that Dorothy S. Montgomery, I3xccu-
r live Director of the Philadelphia Ilnusing
s Association, if called as a witness. would
testify that S% is the normal vacancy rate
but that 5"10 "' ' 0 probably had ncvcr
n bcrn the uonnal rte in Philadelphia", that
r she thought "• • • it would probably
fall somewhere under five and above
three—referring In the normal vacancy rate".
e There was evidence of rental history in the
—T,,.�. �..•-...•..-rte^. ......... .
••q�.�r.;�ev-
0
•
706 Po- 127 ATLANTIO REPORTER, 2d SPRIES
City wluv Ibele was m.1 bila anlnul, ben of validity and justified the eunelminn of
giuoing with 11).'11, indnaniul; " v:naucy tate law Iliac the ann'ndinl; Ordinance of 1936
Derr do. p, ., re of sold aulLJlp Ira than
was invalid,, rlsitrary mud raid.
3q. i hr solely of ill, G ,, l non, col Cun-
salting tirrria•, lu>tutmc of Lund :aid Sbnc
The final order heretofore entered on the
Guvermnwl, Uuiversiq• .,f 1'ruusylvallio,
aburc :Ippr:J is confirmed.
which x•as rul;ngrd by the I:ity lluusing
Rcnl Cnuumi:-mon to walk'. :I sua•ry of
houeiug vaeanrir•'., as o:mph ted ;,ml trans-
o �rn.w,nnu•
milted to III,- Tlnyor and movlLrrs of City
Council ill Noveunbrr of 19.,3, Ih.cluscd that
the meal habitable vacnnrr rate for the
City of 1'hiladriphia, as of Ocmbrr, 19.55,
.3S7 Pa. 201
was 3.4% and thal "•I'he overall raeancy
Hannah ROBINSON, Appellant,
rale has increased from 13',, ill 1950 to
V.
3.4% in 1955." There w•:is also trslimnny
Cllarlos Wilmer WIRTS.
that the vacancy rale had increased from
October, 1755 to Janwl y, 1436. Thr clan-
Supreme Court or Pennsylvaida.
cellor adopird the furiguinl; statistics as
lice. 2D, 3959.
findings of fact. l le also f,mud that rental
conditions elringrd malrri.illy ill the period
from April, 1950 to Jouulaq" 1956 and limit
Arlion for pain and suffering, dis.
I n rowigenp• ill lethal In nlsing rxislcl to
fil;urrulrut, and medical exprusc•s resulting
juslify the rnaetmeut of Ills aulcuded nidi-
from surgery which was neeessirdrd by
naucr of 1956. •1•hc City :c1ied upon and
puncture of esophagus by gastrosropc dor.
arltpha Simd the "legislative liudiogti' eon.
ing examination for cancer conducted by
tnined it, the 1955 ordinance which was cu-
surgeon. The Cmmnanl Pleas Court, No. 2
aelcd oil January 31, 1955. The 1956 onli-
of the C'ounly of Philadelphia ('fried in C.
naure madr no new findings but recited that
1'. No. I ), as of September Terni, 1954, No.
.
• elle conditions relating to housing accomnto-
3273, Joseph L. faun, P. J., entered nnn-
dations :Ib Set forth ill till' "Iegi'llnlre fllol-
51111, and plaintiff appealed. The Supreme
ingt' of the 1955 ordinance, still prevail.
Court. No. 260, January Tenn, 1956,
Tile change 111 housing accominodatnon5
Horace Stern, C. J., held that w'herc plain -
contained in the report of the City (lousing
tiff did not uffer any expert medical testi-
Rout Commission which incorporated the
mouy to prove that defendant had inserted
rover unental survey showing the increase
or manipulated gn5tio5eupc improperly or
in vacancy rate above numtiuncd was ap-
had done anydling else notlaiv to stand -
patently ignored, althuugh it was available
nrd practice it treating plaintiff, entry of
to Council rad to the Committee ml I.mv
nonsuit by trial court was proper.
and Government to whom the 1956 ordi-
Affirmed.
' nance was referred for report.
Alusinannn, J., dissented.
[2] Without reciting in detail all of the
findings of fact by the Chancellor, we are
satisfied that they were supported by errd.
I. Physicians and Surgeons :;,19f9)
ible evidence clearly establishing that no
In action for Pain and suffering, dis.
emergency housing shorlagc existed in Phil•
figuremcnt, and medical expenses i cstllting
adelphia which would have justified the en.
from surgery which was necessiuued by a
aehncllt Of Tile Rent Control Ordinance in
puncture of esophagus by ganlroscnpe dur.
question, :end that the evidence was there.
ing exaninmion for career, where patient
fore sufficient to overcome the presumption
did not offer any export medical testimony
214 Pa. I16 ATLANTIU ILEPOATEIt, 2d BEVIES
sand Pivr lluu'hrd Ilullars, ingetLv
with interest tln•r run flung Jnnc 15,
1953, said sun, oul inlctrst u, Ire p.,id
to plaintiffs upull dclivuy by thew to
d,:frud;mt of a pluperly executed decd
for the premiscs involved.
Per G,r.,
Paul Ci. Lehman,
Alhcrl Houck. 1.1:"lown, for appellant.
Stanley 11, Sit Gel, Lewistown, Il:nry L.
Sirgrl, Siegel & !:irgrl, Lcwistmco, for np-
pcllces.
Before S-r1112N, C. J•, and STFARNIL,
JONI?S, 14111.1., CIIIUSl:Y, MUSMAN-
170 and ARNOLD.
i Eli CURIA\f.
Judgment affirmed on the Opinion of
President Judgc LFII\IAN.
SS^_ Pa. 380
1 John WARREN And Properly Owners Asso-
elation of PIIIIadelphla. Inc.
t
e
•�+ATi ,.T
and
Queen Lane VIIla91, Inc., and Ounun Line
Manor, Inc., Intervenors,
V.
CITY OF PHILADELPHIA, Appellant.
George ORAEUNIG, Jr.
V.
CITY OF PHILADELPHIA, Appellant.
Frank GIACOGOO of If -
V.
CITY OF PHILADELPHIA, AlipelliflL
Supreme Court of Pomhl•lrlllln,
Juno 27, Ill.Z.
divancv void. Thr Churl Of Commnu Pleas
No, 5, I'hiladrlphna GlUlly, at Nos. 6327,
GILD, and 6514, Uvicenibcr Term, 1954, Elf -
gene Alcssandroui, 11. J., Granted relief, and
defendant appealed. The Supreme Court,
al Nus. 201, -102, aud. 200, January Term,
1955, Arnold, J., held, inter glia, that City of
1'hihulelphin He'll Control Ordinance of
1955, a,huitledly designed for he:lllh aud
wrlLuc of citizens, was a valid exercise of
police ]lower.
!!rare reversed with a procedendo.
Suits for perrnaurnt injunction deelir-
ing City of Philadelphia Rent Control Or.
1. Constitutional Law GC.81
Municipal Corpornllmns P625
Under police power, a slate or its mu-
nieipedities may enact stanttes and ordi-
nances for welfare and health of citizens,
so long as statutes or ordinances are rca-
sonable and not atbilrmy and do not invade
fund:uoclual liberties of citizens.
2. Landlord and Tenant e-200.11,278,2(1)
Rrnl and evieliun controls arc not un-
reasnnablc or :ubdeary, and arc valid ex-
ercises of police pov+er,
3, Landinrd and Tenant 0=200.11
City of Philadelphia hent Control Or-
divanee of 1955, admittedly designed for
health and welfare of citizens, was a valid
exercise of police power.
4. Landlord and Tenant (=200.10
City of Philadelphia had, delegated to
it by Legislature by the First Class City
Monte Rule AU Of 1949, police power war-
ranting enactment of rent control. oidi.
;
nance. 46 P.S. § 563; 68 P.S, §
1',S.Const. art. 5, § I.
5. Municipal CeIrporallons r�=57
Under the First Class City Ilonlr Rule
Act of 1949, city unay legishde as d, nnt-
nicipal functions as fully as could grnctal
assunLly. 53 I'.S. t .31'_1.17.
6. Munlelpal Corporatlnns 0691
City of Philadelphia Run Control Or-
dinance did not make an improper delega-
0
I lid
I to
I
WARREN v. CITY OF PHILADELPHIA Pa. 219
(: u,• ns. I I: A. 2d c16
tion of judicial power in Rrnl Commission, Iran, Cily Suhrilur, Philadrlphin, for ap-
P,�,Cnnsl. ml. 5, § I. polnnl.
7. Landlord and Tonant 01270.2(2)
Municipal Corporations 01592(1)
The landlord and Tenant Act of 1951
docs not deal with substantive law ;u to
ui,ell I;mdlurd Itis right In evict and is not
in conflict With City of I'll iladclphgf Ifcnt
Control Ordinance provisions "dating to
right ire evict. 64 P.S. § 250.101.
B. Munirgral Corpnrallona 0,592(I)
'I'hc laudlurd amid Truanl Act is not
an axrrcisc of police powers by :.talc, and
is unl in derug:diun of city's. Police power In
coact a rent control ordinanre. 64 P.S.
250.101.
9. Municipal Corporations Ca592(1)
l)n!rss a statute and ordinance are in
conflict brran Sr mch StekS to ingrnx r(:gm-
latinn under the same power and in lilac
manner and extent, stattte dot's not in.
validate ordinance merely bec:mac both deal
with scone.. snhjccl matter.
Jacob J. Siegel, I. Jerome Stcrn, Asst.
City Solicilors, Jcrumc J. Shcstack, First
Deputy City Solicitor, Abialiam 1.. Faced.
The ordiunurn drelnrei Ibr vilalsuce of
no rmergrury teinlive to hOrviog. Null
"tells to regulsnlc .,,it conlrul ho iAou: n.:-
cumnuRlnlionx nod eviclim,s by calalslisls-
hlf, umsiuunn "cuts, nal prohibiting evic-
tions rsrept ,if rermdn grow nln.
111 ,S.-mlm, J It provid Nis dint evi,llnnn
Omit onl br Ind uub•xR "(7 The 4'uaut
hw. tial Jr:d u rnlbxlnnli•d nht'Ip,lien of
1.1) h.n'ro:y olflsr lion 15,. ,htn;..Ikm In
E4rrlblPr pen i,sion 4f 4,10, hbn cilli; nr•-
enmanndnlia, nod bud Gniled In r•un: Rnl•ls
s rola l ion uGcr written con is by tin• hnul-
lurd Ilial Ilse violation ce:,xc within len
GIs; or
(2) The lennnt in emmnittiug or per-
mitting a uutsance lit sucl, occuuunudn-
lim9 nod Ruch nnixnnrc continues. ntirr
Written notice to the tolmut that rho
131110 slndl cease: or
(a) The tenons maliciously or by tell.
Inn of gro94 liegligeut'e RuMounnlly dam.
eget the houxiug timommosimian or his
rooduct Is such on to interhm nml,xlnn.
Paul Ilnwdeis, Philo(tell hia, for appellee.
1). Arlhm Mugazincr, Philip Sterling,
Stcrliul;, M.q:aziner, Stern & Levy, Phila-
delphia, for George firacunig, Jr.
Islnrris 11, Levitt, Philadelphia, for Prank
Giaeohbo & Sunth Philadelphia Really
1 Loa rel.
Simon boson, Philadelphia, fur Prank
J. llalh,o:,, North Phila. Really I'd., Iidw.
W. )hank & Greater Nonhcast heal Ba -
lite Rrnhrl's Assn.
Jnscpll A. Ncough, Philadclphin, fnr
Robed W. Hank & Wezl Philadelphia
kcalty lid.
Ile.forc STEM, C. J., and ST1SAIZNId,
JONES, BELL, CIIIDSLY, nIUSMAN-
NO and ARNOLD, JJ.
ARNOLD, Justice.
These three cases were arimed together
and will be disposed of in one upinimt.
The several plaintiffs filed bills in equity
against the city of Philadelphia, seeking a
permincnt injunction dccharing defendant's
rent eotltrul ordiwince of 1955 void; and
tinily wills Ilse comfort or hifely of this
landlord or of olhrr fenontr or acrnpunU
of the xams, in other udlnceol huildiug or
structure; or
(4) oeeup;oxy of flip. lsunxlug necno-
mndalhu,a to lho teuunl Is Illegal nod
file Landlord In Rubjcct to civil or trim.
INul lm1,l111 iJ•9 l lnrr,dnr; or
(L) Tho a•n:id k ening or prtvdlling
aucl, hou.im; Necummmh,linoh to he axed
far nn Imuorrat or IIIi'g:d limpoxr: or
(G) TIm tlm:nd who Ind a N'rilhrrn Immo
or other n'nilten n:ntul nmr"m•'nt Wl,iels
birninatb•s un or uflhr May 1, tan::, ham
refused on demand of this loudlord in co-
cents. a written exteo,ion or rmn:,ml
thereof fur If forthcr term of Iihc dun -
tion not in emt,o; rf oo, yrnr, but nlh,•r-
wixe or, the some trans nal cmulniol,u nR
the preriun. lent. Ws'11111Ig iov,far nR
and, tsnns and amdtion" arc iuemo
Rihicul Wifb this ordinnucn; or
(7) Tl,o lrnaut hoe unn'ns,nuddy to.
fumed the Iundlold Rcce"m to Ilse houhing
�•r�+,�^ ..Twp.w+!.v.,e,rwvw.�.��'..rTr'�rinnrl,..'I"'.^r'^v!M,'/.,....,Mr�.r..'aM. a ,.
10
220 I'll, Ilf, ATLANTIC IMPORTER. 2d SERIES
restraining Ihr rn Gute"ll"l lhrlenf. Thr
city filed an answer In the conq,laiul ill
equity and set tip m w Mater, fill 11udiu,f
for judgment au the p)radiugm the c" "It
below declared the I'll i kolclphia I"'It Con-
trol Ordinance InIC-I'l11ullanal and vr,id.
The court held that it was in cenflict lath
various acts of "..'albly of the uwvtrm•
wealth, and that the city had no police pow-
er to coact rent controls. The city app�`II-
ed in each case.
In detcrinining this question we point lint
that the facts pleaded by the city by w:ly of
new natter set forth that there exitb+l in
Philadelphia an cuu•rgrncy housing Oi-at.
age, aRceliug the public health, sa G9y .,nd
welfare. Theft Leet, acre well pleaded :uul
on lite plaintiffs' nx,tious for judgment they
most he taken In be true.
[1 -31 "'Under its polio power a state
or itti. mmnicipa1111cs 111.1,• , nact 'taunts and
ordinancrs far Ihr v: el f:, rc :old Ill :dill of its
citizens. Such a st:dule or urlioanre, how-
ever, must be reiswiableand not arbitrary,
must not invade the fundamental [it,, 'tics
accommodations for the purpose of umk-
Ing necessary repair" or of allowing the
acmlmnodatione to n Pnnprr•licc flat-
rhascr, m 1,101:re nr pnwprciive nwrwo.
are or ollua prfnun hatun: 11 b•gnlnalq
Interest then in prm'idrd, hOu". . "';It
much refnsul shell not ha ground for re-
moval or eviction If Rurh inspection or
eduosviug of the nrrunl joilatlnn Is contrary
to 11...pmvdaiuu of the lrunnl'uu Ieumc or
rdhrr rrlllnl out4-„Incut: or
(H) Tho lundle,vd aoeks In goal fuith
to rerover poseesstou of housing uc•,vnn•
,in,lntioun Lrca ue.• of luunedtnle mud run -
,telling neresnily for Ilio like,, prreunnl ono
sod occupancy or for the time mud oc-
cupancy of kin parent or child; for the
purposes of thin vection, tine word —
pool -cut' Includes n fnlbcr and father-in-law,
mother and utother•In•Inw, lint] the word
'child' lucludes n son and mou•imIlie.
dnugbter and daughter-in-law, sb•prhidd
and adopted child: or
(0) The landlord mreka In good buil), to
recover possession of booming orco.o no•
dntlons for lbo Immrdlale purpose' of
suhsmntinll•v uttering, renmdrling or dr
mobisbing thou, mud curb alterations or
retoWeting ore for the purpame of Mel -
of its rilizrus, • ' `: " Ott" "lilt. Com-
pany v. Rosr, 375 Ica. 18, 25, 99 A 'd -167,
470. 'flus power has hcen juridically es -
traded to many bc',k by social and ccs null'
is art Ll rc: Ga111h„,fc V. Conuuuuw•c.11th,
1375 Pa. 5.17, 551, 101 Aid 634. That rent
,and eviction eornrsds arc not unrcasunable
or oni,ilrary, :nut are valid exercises of this
power, is established: Mock v. Hirsh, 256
U.S. 135, 41 S.Ct. 456, 65 I..L••d. 865; Mar-
cus Brown Holding Coniirtny v. lrcldn:'ul,
'1.56 U.S. 170, 41 S.Ct..165, 65 L.Ed. 877;
,rLeVal Co., Inc., V. Stern, 301 N.Y. 346, 93
N.E.2d M, certiorari Jcnied 340 U.S. 876,
71 S.Ct. 12.1, 95 1-.1id. 637; Rusrell v.
Treasurer :,fill Receiver General, 331 :dams.
501, 120 N'E.Zl 38R. The instant ordi.
nance, being admittedly designed "Lir the
health and welfare of its citizens;' is a valid
rxrrcist• of police putvcr. Cf. Domani v.
Philadelphia Ilotuing Authority, 331 Pa.
209, 2W A. 834.
11.
[4,51 Appllkx, coluri,d, however, that
the city su
Ims no ch power. They ar,:uc
that it rests only in the legislaturc, which
has not properly delegated or granted to
fug ndditiounl hnumbig nrcomtnodutions
for continued use as Lousing u•cennnudo-
lioui, or ore rcusunnbly urcessary n, pro•
tfct and rnnserve Ifo honshig ncranumn-
dnti,mm, provided tbut Ib"' ':"""old Ims
about rd such uplrinal for the proposed
ulirratiuug ur remodeling unit no only ho
required by lose; and provided further
that much tdterntiune or remodeling Cliff -
tint pnrcttcally be dune with lite tcunut
In orrnpnney; or
(In) The rrmovnl or evlcllon of the
churo-mr prq,nmcd Is not hucousistrnt
will, file pnrpns,•K of 06, onbinnue-% nod
would ntit be likrl•v to rryult in Out eir-
cumve•ulioll or evnnimu thereof.
(h) Notre Required. No teunnt ebnll
be removed or flitted from soy honsiug
occnmmoiatiou by court proecmarA or
othrro•ine and uo netion or proeceding
shnll It, cutnurenco,i Ger moth purpusr
opnu nny grounds met forth in tiro: n, e
(o) utdess uud until the landlord elmll
have guru sur). notice to tilt couuni;nion
suit to tum tentmt ON the Commission may
determine to he In accordance with the
laws of the Conmonwenith and to he fair
and In the hest luteresu of both landlord
and tenant!'
IS
ry
f•':
rr
c?
crri
d:::
t' d
IN
R
...1'..Jr:..duiWa�...'... .. ..•..: _.� ._::._.. �... .... _.....:..... ....A..i_•.. ._..:.C:.1. A.: �...
WARREN v. CITY OF PTIMADELPRIA Va. 291
1..1,• ,,. Its A.::a st d
Ile• rill' lisp right In cunlnl I,'lll• ;,ud I vic.
tnnl Ill. r•• rrur of I!i,,r puwel'% i, not in
pea,. hill serl"Ill 17 'If Ill, I'l'l 11.,•n l lay
vLdAInN „I I\Ille'Ir V, Srcn Ull 1, of lila
Ibnur 1,1111. Act of 1919, 11.1.. (r, , .;3 P.S.
CuustnuGon, 1'.5.1 .I.
( 11.'1.17, inlrl alt.,: "'Ph1. char.
wr u( any ,'ll)' or am, iWed In a1.-
111.
nad.mrr wish tlhis a, I ❑I;,v fnuvidr
for Ibr-xvrcnr of anv and all l•or:r,', Ir-
Ialmg to its mmlicipal flmrlinns, not in„an.
17,81 Appellees furlhrr contend that
•„nut wills Ihr Gnislititinn of Ih1. thilled
lis, wdlmu,rr 1% Invalid because it cnullicla
}-laU's u1. of this Cumnunncr•nith, In she hail
"ill' 'I hr landlord:,till Tenant Art of 1951,
, ,scut sisal l4r General A.unnbly may (ill.
ICI.. m, 0: P S. F 7:;111UI. 'this Art sets tip
i,l'dr in rrfrrrmr fherrto ' • and with
the pr,n'edul, n•L.mby a landlord may re -
;.1'r eg.-cl, and file city ulay rami ants.
I•ussess prruhisrs if he has a night to evict
n: nce.e, stairs arod irqulalions nerrruu;t• and
the teu,td. ']'lie substantive law as to when
/roper for call ving min ewer utian the fan•-
lie has a right to evict is not touched ureal.
gn:nr) pa:vrrs Hurl all other pou•rrs rns7r,l in
7•hc Landlntd and 'Tenant Act is not an cx-
she Or by Ili, rharlrr it adopts err by this
creise of pulite powers by the state, and
or may other Inco" (Italia supplied.) "I'lm
hence is pot its derogation of the police pow -
city, Ihert fora', clay legislate as II, ititai ilial
cr of IIIc city.
(unctions as fully as c,ndd the Gem rd As.
sctllbly, By its adnpliun of the rlarler
Indeed, even where both a slate satulr�
(April 17, 1951) the lily was then cl.ahe,l
and a monic'ip:d ordillAIRC have lt•gislate,ll
eith police pure'P
r. his nece"aitly Co.
as In [he sante subjects, if they b1. not in
cnuip:n•.ed authority to Coact such ordi.
conflict bath have been upheld. In Erezier s
p:alr,'S :I:. are for ill' Il,allh olid t%','l f:O l' of
v. Philadelphia, 215 Pa. _97, 61 A. SUS, a
IIS cillIelli. It is oat nrcc%sary for hl•: „J
Philadelphia ordinance, pri.hiltltilh op,-m.
rrcisr ,ver renlc and evictions that Ih.v be
lion (If vCluck, ill tile city %s'ithnul procul-
s1n•rilically enumerated in the Act. I'rrec•,
ing a city license lag, was upheld despite
dent fill this hes ill lilt' rases %%-here, under
state regulation applicable to Ills' culil'e
their genual pulicr powers, Islas 1 1pahtics
eonununwrallh. We uphcbl the right of list,
lace been sustained in thelugulatiotl of ccs-
city of 1111sburgh to regulate reslallr:ml.
I:allmuls, signs, construction and height of
within its louts cvlm though the state also
Ialibliugs, fair employucut foartiacs, anq
regulated in regard thereto throughout the
Intl:•r like ma[[rrs. kline v. Ilari song,/
ermlmnnwe:dais: We.stcrtl Pennsylvania
?I' Pa. 438, 03 A.2d 18', is not controlling.'
Restaurant Aswcialion v. Pitlsbuigh, 3G6
'I hat case involved Tec Third Class City
Pa. 374, 77 AZI 616. Sec also Punturcri v.
I.1w of 1211, P.L. 932, 53 P.S. § 12198 101
I ntsburgh, 170 1'a. -Super. 159, 8.1 AZI 516,
it Icq., which granted general police powers
whrrc the Superior Cowl sustained the.
and al::u spreifirally granted tonin„ powers
i'I;In of the city to ordain the licensing of
pr 111,111 class cities. This Cour[ held that
liquor rstaLli.,luuentx and therein to set
16c anCwrity of a municipal body mus; I
,lore stringent nquircmcnls Ihml required
e xctcixd strictly in the manner provided in
by [lac Liquor Control Ac[ of tam countless.
the mmllte; and that the city could unpose
wealth. The theory behind these rases is
roving requirements solely in accordance
that Peculiar local conditions were such as
%lith the specific provisions of the Act. Cf,
to Permit such regulation.
Section 63 of the Statutory Construction
Act of 1937, I'.L. 1019, 46 P.S. § 561
(9) Unless the statute and the ordinance''.
in question are in conflict becau<e each
(GJ Contrary to appellees' contention,
seeks to impose regulation under the sa isr
Ill,: Pleadings do not establish an improper
power, i. r. police power, and in like trial)-
'!'lel;alion of judicial power to the Rent
nor and extent, the statute docs not invali•
Comnnissiun. It clearly acts in an uduinis-
date the ordinance merely because both :
n'rlivr capacity only, as do zoning boards, deal with the sane subject matter. ,
I . ,
115 ATLANTIO REPORTER, 2d SERIES
As hrtriubr torr %,'I ba1b, Ih1 11-111" Ifnlr
Art g:n'r Ill my ill" paw-, to Ifl; r.l.dr "n,
the full rslrul that Ilre Gurl.11 A .�•ulbly
may legisl:dr in leferrnce" to Il,, sr 111.01. 1•..
7•bis grout of power, IhneLm•, urchnlrll tlo'
exercise of police power to uvrt Ib.• rmrry
grncy ori s iug from the hnusiuy I IIunnuu,—
that is, to (ordain cuunols up•m teul•.:unl
evictions. Thew. viCdly Alit the be:dlh
and welfare of the citizens :cod Oars arc
proper subjects for the exercise of the pnw-
c r.
We do not herr attempt In pass upon the
merits of the controversy, but specifically
]told that for the reasons staled the decree
was in error.
Decree rcwersed with a ptoerdendu;
costs to abide the event.
r
3R2 1'a. 479
J. R. HOWARTH and M. Eugenia Howarth,
IIIc wife,
V.
Flounce E. MILLER and Bon)amin J. Was.
seroy, Individually and as copnriners
trading as rinxrocl: Company And Indus-
trial Glalntenznce, Appellauts.
Supreme Court of Pemrsylvanin.
June 27, 1935.
Inrv, ;111,1 the fat iug of the building con-
vryrd rarudrd Iw'rnly-seven iurhe•, unlu
[III- builrhlq; n Cliued, uul a pil:r.u•r in con-
neelroo with faviut; was nccess:uy fur sup-
pml of the building rrtainvd but not for
support of the 1,60ding core,?al, the
courses and di.ttnwes in the decd cull. cd,
and the grantors bad the right to attach
the conduit Irl the pihuter•
Older and judgment reversed; cum.
plaint disuissul.
I. Deeds Co93
Where grautnrs conveyed premi'es by
metes and bounds together with buildings
and improvements thereon, and building
there(,,, had wall in conunon with building
retained by geudars, and facing of building
conveyed extrudrd twenty-sevcu inches on-
to building retained, ambiguity r•xislc•d and
asccrtainmcut of intention of partics at time
of conveyance was necessary.
2. Boundaries C-,3(3)
Ordinarily, when there is conflict be.
tween courses :11,41 distances or quantity of
land on enc land and natural or artificial
nunuun, tits on ground on tile other hand,
it is well scllird that monuments prevail.
3. Evidence Ca4151(1)
Whcrr a written agrcemeut is amhig-
uous, parol cvi4rrlrc is :I,1IIIISSIbIC to clarify
the ambiguity and to show the intention of
the parties.
4. Bnundarles Cl-�30, 9)
Arlion to quiet title, wherrin plaiuliffs 'though monuments are vrry impnr-
sought also to enjoi❑ mainlenanre of ch C- Oust in dclenoiuim„ questions of boundary,
lrie conduit ou a building. From an :ulf svhere the oouum its are doubtful, resnrl
verse order and judgment of tile Court of will Le had to courses, distances and quan-
Conunon ]Teas No. 6 (fried in No. 2), lily.
County of Philadelphia, as of June Term,
1953, No. 3177, Fdw•in O. Lewis, 11. J., the 5. Boundarles C-3(5)
defendants appralcd. The Supreme Court, earl Walls (1,G
No. 341, jmmary Term, 1951, hell, J., hold y
that where drfeudant grators had run- Whcrc grautnrs conveyed lots I y nnelrs
veycd lots by Metes and bounds together and bounds together with boddings and
will, buildim7s and improvements thereon, improvements thereon, and boldin(; there•
and the bnildntg, thereon had a %%-:ill In cum- on had wall in colmnon with building re-
mmn with a building rrtainvd by the gran- rained by granlors, and facing of building
.a—.1
1
C that
slimed
built
'c are
ICs At
¢lors
:h we
ouscv
ys of
tit,:.,
ally.
4op-
has
s that
h had
to the
a ins
some
0
11DUBUCR V. CITY Cr BAIMAliffir
1 ('11, e� In: A :•.I IN
! pr,clihed ,I ;nlo'fell n I. ,I mdr r. It ion
I'll's to. Iln..l, ,out nau.y and rnnshl,•w e.
.rad IXvIod••• OR. id...1 „f o.. ad, ut.d.
.n0.'1 nl' 1.1111;11 •.rI Vi,'r
1) 1,11:1- 1'o. r. 11. A. Ihigh. f o., I IU ,\Id.
1 3; 1, 381.3: ;'. 72 A. 1036; Carter v. Rr;u-
doll-SO"idl Linc, 148 htd. 515, 559, 117 A.
S39.
According to IIIc n•i,Irnrr in this rase,
the r: wen' 135 udtagvs al I..nq: Hrsrll, Co
I of Which w,•re ocrnpicd by th owners :ill
Ibe year round, a0,1 115 owed by pct v els
wilt, livid ehiewbrre dm i",; Ihr Ipa:nor
part of the year. It was Ill I. O.. r.riun:d
boots of :.rune of th,sr 115usu-
ally during the surnmcr womb., un whieb
file Complrollrr based Ihr tnv.au"I,II. 'I'Ile
cottages were rioted out), oil those ocea-
sinus Whell the ownrrs (lilt not want to use
them. Air. Rockhill trstihed Ih:n the appcl-
Ice rented only (line cmlal,c, it 1947, three
in 1948, six in 1919, mud fell in 1950. Suit to have a relic control ordinance
of the city of haltonorr dcclarcd invalid
and enjoin Il,, m;,yur and city comlcil from
cufurciug it. J."o, a drclaratoq drenro of
file Circuit Coral No. 2 of H.dtimorc City,
S. balph Warukrn, j., disolkNing III,- bill,
C. dupla i null al-l"al d. •I'Irr Courl of Ap-
pr:, \1'illiam R. flnntry, Cp.. ri:d judge,
h.4d Ula, a srrliuu Of the ordin:uwv pro.
6il.king au acliml by a I:wdtord against
I l5vaut Io rccurcr possession of coin,,lied
housing accnunu,datom.%, rc>prcliug which
" n"aximoln ,col is in effect, Ih,ur,h lease
has cxpirrd. sO long as the Icuant cunlintles
IO pyy the rvnl to whidn the landlord is nr
fith.d, is invalid as prohibiting an action,
1,rrniHvd by a Public Geucr l Law, to
evict a tenant on expiration of his lease,
and that the valid portions Of IIIc ordiu:n"ce
Irving impractical xud u%,I,s, without such
invalid portion, the entire ordinance ,lust
fall.
Aid. 09
A•, tl al.l,r.tl. I11a1 the rull:q'v .arC,Jllln"n-
dali,nn, on wow II Ihr I: nng.l lull", Ilasod the
a •...-•.n1•ll1 w IIu, la,,% urn' Out IclPd.11y
fill ...It, lu Ihr puLlic. ;nnl 001dole were
'"It r.nbj,.I In Illy balls Ulx, the order set-
ting aside Ibe asscssnlcof must be affirmed.
Urder allimucd, with costs•
r
, t
HEUIIECK V. CITY Or BALTIMORE,
No. 10, Oct. Term, 1954.
Court of Appeols of Ala ylnud.
July 21,
lndred, it dors uol appeal Ib:d any of the
calt;tgrs were ever offered for rent It, lire
Ilublic at all, regularly nr irrrgularlp. her.
Rockhill adulitled That he had advertised
for Icwults fnnu lime to little on bclalf of
the owner:•, hilt he rxplaiucd tb:n hr .....
fully iuvrstigatrd all applicant'; in order 1,
"sn ern" then" and select only thane w•hosr
rerunnnrnd:,Ii,ons made Ihcm acceptable 10
Ihr. community. hie. Rockhill further les.
fifrcd that the beach has never 1 ... ell open to
IIIc public, hill is ow'ued by the appellee, ;oul
I lie property Owl rers, MIill Ilie i IIII vi I ed 1:11c,I4
are granted a right of way to the Leach.
The ducking facilities arc also owned by the
apprRcc, and the I,roperly owllrrs are re-
guind to make. monthly or anmwd payments
for docking plivilrgrs,
Mfr. Rockhill tcsfihcd that only one cot-
tage had ever been built for the purpose of
hcoig reutrd during tine entire history Of
the resort. )'col Ih:d cottage spas designed
for the exchlsive use of officers in the Army
and Air Force, Moreover, it was leased
for terms of urore than four "mouths, so that
Ole lessees were not transicut guems under
the Court)[ roller's interpretation of the stat-
ute.
Decree reversed and case remanded.
1, Landlord and Tenant P200.11
The city Of Baltimore has power to
coact nal enlurml leg,dalion. Oven in all.
scnec of c,aldiug act, if such legislation is
oul in ronlhct trill, (:lmslilatiou or :illy 1,111)•
lie geucral law of slate, sod mere L,cl that
.... _.......�.,,...�I�r,r,an-,+sr..,,.nlr�•nv---_•,,,.e,r.,,w„�„n/"T'�"'^f.+4"eef;..•.....
.our«....r..-...... r.r� ...«..�...-.--i..... _..... ......w..... «. r.. .-.l��...ur.l�.«. u.;r_.«._I-'yM`,.
100 Aid. 107 ATLANTIC REPORTER, 2d SERIES
such an onlinanre, in its revt.ds. Irlics
pan ialIy ml iuvand anlru, bony cuaid ung
act, dues nal pi -vitt is pas,ega• miller
such police power. Cody 1'YI, art. 44C:,
as antem r i by Acts 1951, c. 572,
2. Landlord and Tennnt C-,2011.11
specifically uuc
ruurted there in, snbjccl to
plovisiolls of state Constitution and Public
(;,m ;,I Laws, a hxcal city law or ordinance
cnu0ictiug in any manner with state Cou-
stirrtioo or public general law is invalid.
Const art. ILL, § 3.
R'I;uletinn of (rases of dv:rah ups IM- 0. Municipal Corporations C,597(I, 4)
int; v:illmill titala''v pnliec power, rmly of (:II)' r lydnllalll•1•s asSmlllllllg dilecll)• or
I bdlimur, It;,% such to •.;our extent iodr,'etip us permit acts or occupations
within rity limils miler pmviaon of its pndubitrd by state slaiulus or to prohibit
charter ;nithnri,ing mayor :uul city council arts permitted by state slaitte or Cuusli-
l0 exerclsf: prlllU• pnw'1'r within city limits lnliun are mill and void.
to Sallie extclt as slate tiny do so.
7. Landlord and Tenant 0270.1
3. Landlord and Tenant 0700.11
The rnactmcnt of act enabling mayor
and city council of Baltimore to regulate
and emnrol rents and housing within city
limits for sp,cifird period did not impair
city's police p AVVIS, and srclion of act pro-
viding that, nn rs:pirtion Of its pmovisions,
any urdivancc odnpla•d tirelcunler should
erase u, have any effect, did ant render city
real rnullnl ordinaurc, enacted pursnanl
to city's lattice powers, as well as such art,
inrffroke after statutory espiralianh date.
Code 1951, art. 44C, and § 5, as amended
by Acts 1951, c. 572.
4. Landlord and Tenant 0200.11
Tile act enabling mayor and cnmtcil Of
liallimore City to regulate and eoulrul rents
and housing within city limils for specified
period did not iulplinlly repeal city's po-
lice power to enact such legi'l tion because
slate Legislature pre-cmpted rent control
field, in view of provision, of act that noth-
ing therein should he eonsuurd to fake
away any power of city under state Cmhsti-
lotion or law, but that powers granted by
act should be in addition to those previ-
ously granted city. Code 1751, art. 44C, and
§ 7, as amended by Acts 1951, e. 572,
5. Municipal Corporations (r+592(I)
Under crostitutiunal pla,visiam that
public general law in ondhct with local
law, enacted by mayor ;uul city eouucil of
Baltimore after adoption of city charter,
shall cuntrui, and section of city charter
providing that city shall have all powers
'rhe scctiml of Baltimore city- ordi-
nance prohihitiug action by L,ndlurd against
tenant to recover possession of controlled
broking accommodation subject to maxi-
nnutl rent under ordinance, thriugh lease
ha, cxpir,d, so lung as tenant continues
to pay rwl to which landlord is rutilh:d, is
invalid a% pnahihionl; ;m action, permitted
In' pnbhc gencrnl law, to evict anon un ex-
plrtion of his lease; ;¢t emldnng city los
n'gulete and enrol rent•: anal 11-11ing
within city having rxpired. Code
19.21, all. 41C, §§ 1.8, 7, as nusrnded by Acts
1951, c. 572.
0. Municipal Corporations 0111(4)
Statutes (3:44(I)
A provision of city Ordinance or stat -
hue that, if any provision thereof is held in-
valid, validity of remainder shall not be af-
fccied, is not a mandate to courts, but
Inertly expressive of legislative intent, and
ordinance or statute trust fall entirely if ef-
fect of declaring portion of it invalid would
he to render remainder incapable of ef-
fecting purpose thereof.
9. Municipal Corporations 0111(4)
The invalidity of section of Baltimore
city rent control urdivancc prohibitinl; ac-
tion by landlord against u•naw to mcover
posxssinn of crnluollcd born .ing arca;n-
urodatunl suhjcet to maximum It'll under
ordhcmce, thuugh lease has expired, so
Inng as tenanl cnutmucs to pay rent to
which landlord is entitled, contrary to pub-
lic general law authorizing action to evict
•vqmilllll�, all:
I. .w
to
die
lice
oil.
lid.
or
,IIs
Lit
,ti-
di.
list
led
xi -
ase
leg
. is
.ed
:X.
to
,y.y Yii. unWJa+L{illi.+... �.:.`AL.-... —_1:f ...��.,j,je• .....`�A..�:+...sr..LaJEr.
IIEUBECR v. CITY Or RAI,TINORE hill. 101
Cll• u. IN A.ld 9a
truant on expiralion of kv,-, invAi,latrs
entire ordinance, as valid portions thrrrnf
lespecling rent r,; udatinna art- impracti-
cal and listless wilhuul invalid puuion.
C'odc 1751, art. .1 IC, § 2c, as amended by
Acts 1751, c. 572.
P. lhulay lt,nenn and Ilenry M. Ihch.
n', Jr., Itallnoutc (Thoma, (i. M, ( auslaud,
lalti,w,lc, on III,: Ltivf), fill I114ni11od.
Hugs, A. Iticcinli, Asst, City Sol., Kilti.
sills (Thwnw. N. Iliddisnu, (ity Sul., and
lidwin ll:uian, Deputy City Sol., 11:11ti-
inore, oil [ht- brief), for appellee.
Before 11RUNF, C. J., DELAPLAINE,
and COLONS, JJ., and WILLIAM R.
I ORNEY nal JOS, R. BYRNES, Special
J ildges.
SV11.1.1AIII R. IIORNEY. Special
Judge.
lu 1917 the G'nclal Assembly of Mary-
land, aolirip:,liu;; the cad of Prdrral I imus•
iug and R,-nt C•unlnds bcfmc the rinctgcu-
cy relating thereto in certain localities in
lie State hall ceased to exist, enacted a
law enabling ihr. Mayor amt City Cnuncil
of ll:ltimure City :old the Cnimly Couunis-
siouers of certain counties and the incor-
Iroralcd towns Ihrrein to r(gll:dr and con-
trol rents and housing within their respcc-
live limits during a period of two years
ending Jute 1, 1949. laws 1947, Chapter
507; Code 1931, Art. 41C. In 1711) and also
in 1151 the Act was amended so as it, ex-
tend the expiration dates to June I, 19.+1,
and June 1, 1953, respectively. Laws 1919,
Chapter 6,18; I:,ws 1951, Chapter 572.
Again in 1153 the General Assembly by
Chapter 774 amended the Act and intended
In extend the expiration date to June 1,
1955, but because of certain irrrgulnrities
in its cnaetou it the last amcodno lit was in-
c(fcctive. No effort In revive the ena Lhng
act was therralter made. Thr chane, llnr
below held, and it is conceded herr, that
Chaps, -r 754, supra, was invalid. 'I'Ims the
provisions of Article 4417, pursuant to its
terms as amended, expired on June 1, 1953.
As annrip:drd the Prderal lllnr.ing and
Rent Act of 11117 as ano•ndrd, SU 11.S.C.A.
Appendix, § b`;til vt sell., rxpired un July
31, 1753. Uu May 21, 175,1, the lL,yor and
City Council of ll.iltimore, pnrsoaul to the
pnrv'isiaus of Arliele 44C, supra, and the
pulin: p"V, t'. of ihr City, enacted a rent
ennliol onliwmr,• it Lriug Ordinance No.
716. SnLsrgn,ully Genrgr F. Ilrubrrk, the
;,pp,•Il:nn, filed a Inll in Ilicuit (:hurt N0, 2
of llallilll..lt' (*It)' sI -1 -king In h:IV,• said
0rdiu:a4'e d,rland invalid and to enjoin
Illi. Mayor nidal I sly tbnncil of llaltuoow.
app,•Iler, flnm enfurriug it. From a dc-
cl iatnry (core dismissing the Lill, the ap-
prllant Ig4valel. The appeal poses several
inlrrestiug 7utmiuns.
11.21 The City of Mthininre has the\
power to snarl still e0nlrol Iel;idaliun, even 1
in the ;ibsence of an enahliuf• art, pro.
riled much I,y;nlahno is not ill can Ofcl will
Ihr Constitlllinn of the Stale lir any )'Ill.. i
tIC. Grnrrel Lav: Ih, 11-01 Tim Derr fact
that the ordivawr in its rrrila4: I,Fell par-
tially up'll the ruabluiy art as :unrndrl,
wnudd nal pn•ernt its passage nndt-r said
police power. Set-liou 6 (24) of the Ball (•..
marc City Charlet provides that the llayor
isn't (:fly Gnelvil of ll:ltiolon. shall have
power by ordinance lir such tither i n•thod
as may be provided in its charter "in ex-
ercise within the limits of Millinime City
all the power commonly known as the Po-
lice flower in the smile extent as the State
has or could exercise said power within
said limits • 4 • ". Inasmuch as Ihe\
regulation of Ivnws of dwellings is within
the police power of the Slate, Marcus
Itrown Molding Co. v. Prldmau, 2563 U.S.
170, 41 S.Q. 465, (is L.rul, 977, it is cdearl
that the City has such lxnver to the same I
extent. R. It. Const. Co. v. Jackson, 152
Md, 6371, 137 A. 279. And as was said
in Rossbrrg v. Stale, 111 Md. 394, 7.1 A.
SSI, 532, with nearel to Ihr pulite power
of the City, "!n0ad, r or more r,nopl• I;, -It.
sive police puw,rs emld not be eonfcrrrd
under any gcueh:d grant of police power
Is r . Is
[3,4] The enactment of the enabling
act, Article -MC, supra, did not fn any man.
los bid. 107 ATLANTIC REPORTER, 2d SE1tIES
nrr impair the p,dur puwna of Ihr 1-r1
Ahhuugh Solinn 5 of Adient •III In
vided Ilial upon the axi.il'aliou of lr pr
tisious Ihclrof ally oalivaun. :eLgm
Ihrrrmldvr shoald era's to Marc :my r
fret and Ihnrnpuu hconnc unll .nil voi
Ihcle is no d"111.1 Oat the hahiuune GI
ordinance did wit fur that nw,,ll Ir:H,' l
he effrelive from allot after July 31, 19;
inusomcli as !:,ill uadinaurr. hall al•., ilea
Nutted pul•:u.wt to, fit(- pulite p„w. u. u
thnr
e City. MonrTo fit, rnahlin;; art da
nal impliedly rrpcMich elt polio pv
ae rs he
.s
cause the ,Uue Lrl:islalure l anrmptcd Ili
rent cnutmi field. Sccliuu 7 of Atuclr 41
spryficlly pruvides: ” Nu;hiug; in this Ar
tick shell be C..1111111111 Ill take ;av;ry an
power which ally city lit eotuny uov ha
under the Sure Coustiudiot lir any pub
lie lural or piddle gruerl law', 1,111 file flow
crs granted by Illi% Article stun be m ad
ditint to lite powers heretofore f;uuucd.'
/lfence, it is olaaous that whatever rffrrt
/ the cuuuniou o
:rcd aril expiralf the n le
cuulrul cmdshlig act uuq have h:nl upam the
police power, of other iKditir.l sul,diri.
n
cios of this State, hacking file louad I'll.
lice power of Ilallinaure City, the policc
pw
uer of that City was not iugaainKl.
(5, 61 The only limitations upon the
police power of the City arc found anu,lrg
the provisions of Article SIA of the Dlan•-
laud Constitution, often rcfcrrcd to ac the
l fume Rale Amendment, and the Ilallinu,rc
City Charter, the graining of which was
made possible by said !lame hale Amend.
'lent. Scctiuu 3 of Ailicic SIA pruvilcs
impart that from and after the adoptiotl
of a charter by file City of ltallimurc, the
Mayor and City Council of lialtimmc,
nibjecl to the C•mulitadion mid Public
General Laws of this .Stage,' (italics sup-
plied) shall have full power to enact local
haws of the City, hilt "ill case of any cou-
nict between said local law amt an Public
General Law umv or hereafter wa�'lol the
Public General law shall control." Like.
wise, Section 6 of tine Italtimorc City Char..
ter, under which all tile w
e puvrc of 1lalli.
more City arc derivrd, fnchuhm; th, police
power, Section 6 (24), supra, provides,
among other things, that the City shall
Y. bac,' :dl of III, pawns specifically cuumer.
P ;telt iillNand Sri 6, hilt "subject lJ()the
I.I. provrianls of said llmslitutiurt and Public
d General Law.." Thor Notations upon the
f- 'pow cr of lac City to enact heal Laws or or -
d, : dio.11w. no includoig the ""Ci,, of it: pn-
y hpower, ower, appear lu he clear and unmis.
u Iakaldc. If :1 local lase or ordinance con.
t, flirts in all moiler with the Consfitntion
u or a Public General Law, then the local
I Law or oldivanrc is invalid. 7'hc test is
d cuucisc ly salted in ILceherg v. Sane, supra,
dreidld in ITO). sevelal years before the
c !ionic Role Amcmhurm and the L'rllitnom
C City C:hanler alopird pursuant therein, in
. which it was said that "ordinances svlaieh
y assunlr dirrctly or indirectly to permit acts
t
S or oaq,:t ions which Ihr state salutes pre-
- Mbit, for to prohibit acts prrmittcvl by m. at -
lite or constitutionco
, are colder he f:mlil.
iar title for validity of ordinances ai-
n
' fonan
nhy drelat,d to be nulf d void." In
the koss1,ng case, an m'divanee providing;
t for pruallic, different flmu and in aldi-
liml Ill file pruallit s impo.ed by Ar'licl<• 27 of
the Clnlr for attain violations of the oar.
colics laays was sustained by this Court,
not hrc Ilse the ordnnulee enacted tmd(r
the policc power of IIIc City prevailed over
a conflicting I'ublic General Law, but be.
cause said ordinance was not in connict
Will' file general law. A conflict only
exists, as tilt opinion poiuls out, when an
urdin:mce prohibits sonwthing permitted by
file Legislautre, or permits something pro.
hibited by the Legislature. In Lcvcriug
v. Board of Park Commissioners, 134 \W.
48, 106 A. 176, 4 A.L.R. 371, file ordinance
permuted file 1113)'iug of baseball and
other games on Sunday by professiun:ds,
whereas the Public General Law prohibited
work and bodily labor on Sunday. This
Court, applying the test laid dawn in the
I<ossberg case, found thal a vmnict exfwd
and held file ordinance invalid. 1Vhil•, the
ordinance in the Levering case had l., -n
adopted before tine effective data of die
I lame Rule Amendment, neverlhrless the
rule of interpretation there applird is jnsl
as Valid now as it was then. The only nlher
case even remotely in Ix,inf is that of Her.
mail V. \layer :cod City Coluleil of lialti.
more, 1S9 Md. 191, 55 A.2d 491, 173 A.L.R.
lball and
.y. This
'n in the
t existed
Virile the
tad Leen
of the
less the
I is just
Ily other
or •rcr-
..,;y,u.........f..:J.:._..:...............aJJ:......`.,....�.,wx......A.....,.J L� �'.. ..tee ... �d.�rfa�Yr'r.+li�a:.:
1
IMILIBF.CK v. CITY OF BALTIMORE
cur ,,. mr A.2.1 Ir,
I 1.110, w•lmn eunerrned the Validity
ol,hlcon'c imposing a I;1% un c,'rta
rnhulir brv'—fages ill III,- ,hods Of
crs. Thi•: ('unit snal:dnrd Ile • lir, It
In,l fir ,lit a,Isun dial Ihr ntdm.o,r,
pi,col w,- over a rnuflect m;; ,public Grn
rr:d Lae:, as tier Iranled (howt'llur In'tow
app,ars trr Ilacc f.,uwl, Ilnl b-rmim- Ibr
) rpislanoc Imd im;,Ii,,:l}• r, pr:J,d See -
milt F of Article 21: of Ill.. t'udc [unw
('ode 1);1, Art. 21:, § 2 (a) 1, iwnLrr as
Millinime City was cooed feed ley the (tract•
nlcnt of a ,public li,cal l.aw applicable only
to Italli,]unr City. lasv 19.15, Sp.5t•ss.,
Chapter 1. lu that case the Court held that
because the I'uWic Loral Itnv col Ilietrd
"pith lite General Ian• the I'ublie I�xal I.:nv
must prevail, Cndc 1951, Art, 1, § 13. hs
the light of lhr,e drrkinus, Ihr liuilalion
of pov:r•r rxpresseil in ill,Home' _Mille
A tticuduuut, and rsperiall}tier• linmattnnc
of power r..ln ess,d in IL( I:Atiimm' (!try
Charter, under which all of IL(
puwws:u,• drrivtd, In it,, Wert tls:n lie"
I s er cite of taut II pians, Idu, hu l; the pu
lice powrr, are mt6jcel In the Cimslitnliurl
and ]Intel](- General Laws, it is, w•e believe,
aLundauily dear that any Ior:Il I:nv ur m -
Ili n;wec whiel, in ally manner conlliels with�
wily Milk Gi'ncr:,l Law is inv:Jid. -
Aid. 103
of an anrtuntes la pay the runt In which the land -
in al- Intel I. vnlillcd 4 • •" The Public
n'C,il• (;-neral Lan, applicable lir file entire State,
name-, pruvidrs file the evil life,] of lrnanls hold-
. O,nl; InK ucrr al Il,r rSpir.nion of their terms
[71 (laving druid•.Ithat liahimorc City
11.15 Ilse power to enact relit control leg.
islation, even in tiro absence of an en-
abling :rel, provided such IcgOdalion docs
not conflict w'itll the Coll"itution or Pub -
lie General law's, and that the enabling act
codified m Article 44C in lite Code did not
in any manucr impair the police powers of
the City, and having set twill the only
limitations upon the Iwlicc power of the
City generally, it must now be determined
whether or not the (trill Control Ordinauec
conflicts will, any I'nblie General law.
Seetinn 9 of the grdinancr provides in part
Iha[ "no arnun or proce(dug to recover
prasession of any controlled (sousing ac.
emnnfudatimn, With respect to which a
maximum rep: is in (ffrel under this or.
ditmi ce, shall be nsaintaimblc by any land-
lord against any velant not withst:uvling
the fact that lire tenant has no Irate or that
lits (case has expired, so long as the tenant
It Iml",,]nli,e has been gisen. Codd 1951,
All. 53, §§ I S. Srclion 7 prrscrihes cer-
tain mitre rrrpiiOIncnls, but Ilaflilnore
(try i, carhrbd from them- requirements
;md I. pcnnitled In establish its own no•
tic" rcqui,cmrnls, which it has thme, as to
all types of rases. However, the Public!
l.rreal Law, of Baltimore City do nut con-:
Irnl the right of rviction, salich remains
subject to the POldie General laws jnsl
referred In. Olhcrwkc Suctions I through
S apply to Baltimore City as will as to the
remainder Of the Stale. TI I( Brut C n:\
tied Ordinance, therefore, prr,hilu,m an ac-
nnn which Ihr Public G, nc cal Law per.
u,its, Il,at is, the eviction of ;, o'n:un upon
,hr expiration of Itis ,,ase. Under llu• Icsl
laid'I"MI i„ the k,wsbrrl• c.," ;mq a lhrrr4
In in the ,Luting rase, IIIer,• k a conflict
bchecrn Ihr ordina uce :uul Il,t• Public
(true rd I aw. and as howt•en Ihr Iwo the
I'ublic Grucral law prevails. Iu.,sunich as
in Article 4-1C. supra, the cm,Lling act has
expired, Scclinn 9 of the ordinance is in.
Valid.
[B, 9] The Only Were qur•.0on ncees.
sary to be decided is w•hrthrr or lint the re-
mainder of the 11cut Cunnul Otdinanee
mntst fall with Seclion 9. Section IIB of
the Ordinance is a separability clause and
provides: "If any provision of this or-
dinance or the applicanion ill( Icof to any
person or circumstances shall he held inval.
id, the validity Of the rentnindrr, Ihercof and
the applicability of same to other pe mOn,
or cirrunlsumees shall int be affcrtcd
therrhy." Suds a provision in lint a null -
(late to Ifr• reenlist lint is mutely vsprvssivc
Of IIIc I,gklalivr intent. In Scinwider v,
liner, 17O Md. 326, M A. 914, 41'1), it was
held that a separability clause "is merely
drelaratury of an established canon of con-
strucnou f1TugIIIICd Ly this emnrt", and
that, re; ardlrss of such a clause, an act
,]ulst fall entirely if the effect of declaring
a portion of it invalid would n•nder the
remainder incapable of effecting the pur.
107 ATI,ANTIO REPORTER, 2d SERIES
pn>c for e. lm i• 11 the a,t v::e. rnarinl. In
this cut uIll tum IIIr c:e.( of K l'. 11. C's -
poratiun V. (krcnhno u, .)W) NN. III), gn
N.E.2r1 Wr5, :Jit, ir; tow:ii I;AJy similar Io
tile, ce.c• sow Ill bore Iters l 4,1111. 1 lir It..
the City of N. •.v Yost. had 'lot. ed n1 of-
d ilia nec, und,I ns In. u"• 1111, chin ler, rrg-
ulaling roll, and cvicllulc.. Tl1ow pur-
liuus of the uidin:orrr if l;ouq; In evio liens
were held to I, invAmid broauso lhry con
flicled with Ilio pul,lic I;rnn.d Lia•. of the
State of New fork. In StWon.: d,nvn the
rent rcgulalions as well, [lie Court of Ali.
peals of New fork said: "Itul the void
eviction pnrvi.ions of enb,livisians of mil e
are stiff the wlude of Ihc lo,•:,I Low. Th., not
hxiug pno•iauns of subdivi•inu r. rvmaiu
to be diseus•.cd. U'het:cm subdivision e
call stand almmr ur must Gil with subdivi.
signs d :,fill a is a (luostion to v: hirh we now
turn in the lipiml of the xp:ualnlity clause
(,fund in suL•Inusiun U. This question is
One of legislative purpose, namely: wnuhl
the city crnuwil have (laded fire local law
if it had bce1. aware 11m.'1 the r%icliull pen
visions were iuvalidl 'fit.- answer Curs
not turn upon IIIc division of the luc l Luv
Tutu scctious or subdivisiuus.
The restricliuus upon Ihc• right to evict
tenants and the restricliuus upon rent in-
creases were req;arded by the city coun-
cil as being equ:dly essential to ten declared
purpose of their local lave. Ilcucle Ihc one
set of restrictiuns caunol be separated from
the other except by a runudelinl; of the I:tw
Ott a scale which, as we believe, would be
beyond IIIc judicial power." Prom a
perusal of Ihc claire Ilallimure bell Cliff.
fro]Ordinance it is apparent that the Mayor
and City Council considered till. problem of
evictions in be an integral part of the prob.
)cm of rent regulations. That the Gen-
eral Assembly of Maryland eunsiden•d
that rent regulations are of nn avail with.
out regulations governing evictions is ap-
parent Gln the inclusion of Scrtiun 2 (c)
in Article CIC. To establish a nnzainn in
rent for a dwelling unit without being able
to prevent an eviction upon the expiration
of the tcnaot's (case dcspilr his will ngnets
to continua to pay the prescribed run would
be a futile mums indeed to achieve the ends
for which the ordinance was enacted. As
the valid pomms of the ordinance are
implactic.d and useless without the invalid
pomlions. Il,, online mdinancc must fall.
Widen this it is wumrccs;oy that
svr decide whetter: the powers delegated
In Of. 0,111ni• ioa, "rl up by the provisunts
of Ihc Ballinnnr Rant Control Ordinance,
:,fc invalid, :old wholher the evidence
pmolfcrcd by Ibe appellant as to life cxis-
truce of all run•rgency should have been
:dbnitted,
Whether a rent enntrol ordinance en-
acted without a restraint on evictions
world be valid is not before us in this case.
Decree reversed, with costs, and case
remanded for Ihc passage of a decree in
confurmnity with this opinion.
p �mi,.nu inn
r
IIINIE at fit.
Y.
ANTHONY, To Uso of GOVERNMENT EAI-
PLOYEES INS. CO.
No, 175.
Court of Appenla of Dlnrylnnd.
Aug. 5, 2954.
Action was brou„ln to recover for in-
jurics surtaiued by plaintiff when nutnmo-
hilc driven by her was struck fu the clear by
truck of defoliants. The Superior Offal,
of Baltimrrre City, Michael J. Maulry, J.,
entered judgnu•ut fool- plaintiff, and defend.
ants apl>calyd. 'Ila Court of Algreals,
Brune, C.J., hid that evidence was !uffictia
to warrant submiroion to jury of fss:les ron-
ccrning pernr.nrc.cr of plaiutirf's ioiurirs
and to impainm:na of her carnin(, power.
Judgment affirmed.
I. Damages C-200(0)
In action In rrcavrr for personal in-
juries, evidence was sufficient to warrant
al
r.i
In
s. I
i,
J
�n-
he
:r•
:d-
ol
of
,p.
18,
S.
at
rC
l= -
0
1
I
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i
..� .:a. • ... ,u�. . • ......... ...... _... ... ire ..,... ,•w'.iaYUilvi.t.w:..,..,.:. r.-.
CITY OF MIAMI 11EA011 v. I'LEETW0011 HOTEL, INO. Fln, 801
1'llr u�, P1n, 2111 :�•, 211 VII
such duuLt will he resolved against the
CITY 01- MIAMI III"I" ACH, :I municipal oily,
corporallon, Apprllint,
V.
FLEETWOOD IIOTFI., INC., at a1.,
Appetler5.
No. 3970U.
solm-uu Court of Phallhl.
April U. 4172,
Several lesson, who wct,directly af-
fected by tent ❑nmol whimncc, filed coal
plaint stcl:iug a dcclartmy judpincnl nllrl
iujnnetivc relief and alt;wl,mg the validity
of the ordinance on conatiunimlal grmuul,.
The Circuit Court of I7;«Ir Coully, Jaci
A. Falk, J., declared the or divance irn•:did,
dull city apps:led. The Snpn•nlo Court,
Rnbrots, ('. L, held, tater Alia, Ouu a rnu-
meip;dlly Ila, nu power to ,omrl a 11.111
control ordu,.mcc, ahs••nt a Irl:i•daliva ro
acttnt•nl ;ollIIm I,g the e.,rlvnc of sorb
pmm LY a nnuucipahl).
A f finned.
3. Municipal Corpurnllonr C.+57
\fluuclpal cminflallons :ae-cslahlishcrl
fur pm pr,�.es of lural I;uvcruwcnt and, in
Ihr ubscme nl ,peviflu d(lrgatinu of flow -
"AWMI MI rugal;'. in an) und411aking not
dircrlr•d Immediately to the accomplishment
of th,rsr purpu:.cs. P.S.A.Conrt. art. 8,
y 2.
4. Municipal Corporations (150
LOral guvcronrnis have not Leen giv-
en urnuiputcnce by home rode provisions or
I-) pruvislnns t f til(• new 1968 Florida
f'aucululFull relating to powers of munici-
palities. f'.5.AA Onsl• art. 8, § 2.
5. A1nnlClpal Corporations CU592(1)
..\letters Ilan became of their n:lturc
,nr iulo•rcotly reservrd for the state alone,
:eel :mlong 0101 have been Lludlord and
irn:1111 lelalmnchip.and mall whir matters
of grm•lal nod statewide significauev, are
nut proper suhjecls fur local treaunenl.
I )eklr, L, concurred iu part ;old Ills G. Landlord and Tenant (-+200.10
willed in pall with opi muu.
Ervin, J, di.e:cutrd ,vith opinion.
McCain, J., dk5culcd.
I. Municipal Corporations Ca50
That Iht• parammmut law of a uuuliri
pality is its ell itcr, just :,, the Stale Con.
stitution is the Chattel of 16e slate of
Florida, and gives the nunlicipahty all the
powers it possesses, unlrx athel statutes
are applicable Ihercto, has urn b,en allercrl
or ehvlged by the ucw 176E I:Iorida Com
stitution. F.S.A.Const. an. R, k 2.
2. Munlclpal Lnrporatlons (-157
I'u,vtrs of a muniripallty err to he in•
redacted and romtnted I,, refcicnct to the
purpu,ts of tl,c ununcipainy :nal If rcasutl•
a' -le doubt should aruc as to whether the
olUnieipa illy pu>sceses a sperdic puwcr,
Al so 23-51
A munieilcdily has nn power to enact
a Fell ctn11rol oolimnlcc, absent a legis-
1:111ve elmetlnew :ulllruri>ing tilt exercise of
such power by a nunucipalily. F.S.A.Consl.
all. R, § 2; U.S.C.A.Const. Amends. 5, 14;
F.S.A. § 83.01 rt seri.
7. Landlord and Tenant C. 200.10
An increase in the cost of living, alone
is 11111 a jnsli6elonn for rent control legis•
Latin, limiting the anonun of i. -Ill which a
Irn.mt way he reymrrd to pay
0. Municipal Corponllonc C=591
Certain porcisonn of n•ut rautrol or.
dimmce :unounl.•!1 to a,1 unhnc fill dr loyal Fut,
of Icgrda Flo, aulhorily Ly c11y rouuril
uilLnut appropriate guulelu¢s ut the fix.
Ing of the 011141 liulils a, IU the dlscretirrtl
iundn:d: nr pallicular, Ihr city rent and
mhabilllauon admillmrliuu cst:lhlishcd by
the ordunwce cotwwd vdcly of one in -
i
n
0 0
802 Fill 201 SOUTHERN REPORTER, 2d SERIES
dividunl, til• city trot adnuuraraurr, and
in that single individual was vested unhm
riled discrc•linu it, drleruune which aeeoot-
Inodallon, were to hr controlled ami a num-
ber of other things.
9. Municipal Corporatlons C.a591
Thr •.nuc restrictions %,Joel, apply to
du• legishuroe's del(gatian of legislative au-
Ihnnly asn apply Io the enadilicul of
municipal ondinanrn..00lrr the general too.
lice power by numicipalities in drat city
oldloances must rut constitute an improper
delegation of tegisbtive, executive or ad-
miuistralive power.
to. Municipal Corporations G+591
Unrestricted dhcrcuon it, the applica-
tion of law without appropriate gmdvlines
in delernuuing its mnminp may not he
dedeg;ord by city council to ;,it agency or
to one person.
11. Municipal Corporations CP597(I)
Rent control ordin:one, specifically
that provision making it unlawful for any
person to remove a housing unit from the
market if the same would result in eviction,
conflicted with state slatsdnp• provisions
and was subordinate thereto. P.S.A. §§
03, 93.01, 53.06, 53.20.
12. Municipal Corporations (}597(1)
Municipal ordinances are inferior in
status and subordinate to the laws of the
state and must not conflict therewith; and
if doubt exists as to the extent of the
power attempted to be exercised which may
affect the operation of a state statute, the
doubt is to he resolved against the ordinance
and in favor of the stattite.
James A. Kraus, New York City, Jona-
than Weiss, Alfred Feinberg, hliami, Leon-
ard llel(and, \Naini Beach, and Tobias
Simon, Miami, for appellant.
Cypen & Nevins, Miarni Meath, And Dub-
bin, Schiff, Dubbin & Bcrkman, Miami,
for appellees.
ROBERTS, Chief Jutlirc.
\Vc here review by direct appeal a de-
cisiun of the Circuit Court, Dade County,
holding; unconstitutional au Ordinance of
the City of \Nonni beach purfwrling to
regulate rents. In rendering his opinion
and caking his decision the triad judge
construed A controlling provision of the
Constitution, namely, Section 2, Article
Vill, Constitution of Florida, P.S.A. Sec
also Lisscnden Company, Inc. v. Buard
of County Commission of Palm Beach
County, 116 So.2d 632 (IrIa.1960). Ordi-
nance No. 1791, entitled "I lousing and Rent
Control Regulations," provides for regula-
limt of rents in all housing with fmtr or
more rental units except for hospitals, nurs-
ing homes, ictircrnenl homes, asylums or
publu• institutions, college or school dormi-
tories or Any charitable or educational or
non -loft institutions, hotels, motels, pub-
lic housing, condominiums and cooperative
apartmeius, and any housing accommoda-
tions completed after December 1, 1969.
The City Council euarled the Ordinance
in October, 190 after making a determina-
tion that an inflatiunar,v spiral and A hous-
ing slmtlage existed in the City which
required the control and regulation of rents.
The City contends that it acted with the
intent and purpose of protecting its resi-
dents from exorbitant rents.
Several lessors, who were directly af-
fected, filed a complaint seeking declara-
tory judgment and injunctive relief and
attacking the validity nn cunslittoiorl:d
grounds. After considering motions fol
summary judgment filed by both parties,
the Circuit Court, Dade County, declared
the Ordinance invalid, holding, inter alia,
that the Ordinance was an unlawful dclega-
limt of legislative authority by the City
Council and construed Section 2, Article
Vill, supra. This appeal followed and we
affirm.
The trial court declared the Ordinance in-
valid after determining that the City of
Miami Beach does not have the power to
enact a rent control ordinance, that the
I svruo,,:ate._
CITY OP MIAMI REACH v. 1'LLETWOOD IIOTU, INC. I9e• 803
Cllr nr. I'I,,.,:lit s„ e,I Wn
Ordinance was an unlawful delegation of Allbongh this new provision duce change
legislative authonly Icy the (lly ('aunt d, Ihr old rule of the 1885 Constitution re -
and that du• 01111 n lwe conflicted Willi sprrling dclegalcd powers of municipalities,
state law, specifically S,etiuu; 83.03, 8.1.01 it still limns municipal powers to the per.
.and 8.1,20, Florida Statutes, ICS.A. fornnance of rnuniripul functions.
The legal issues imolvcd in this rue
are as follows:
(I) Whelher or not IIIc City of Mi;nni
Reach has the power to enact this rcpt
control ordinance?
(2) Whether or not the rent control or-
dinance is an unlawful delegation of leg-
islative authority?
(3) Whether or not the rent control or
divance conflicts with slate Lav?
The first issue most be aM%vTral in the
negative. The City of \liana Reacts doer•
not have the power to enact the ordinance
in question. ')his Court rccognin•s that
the language in the Florida Crmslilolion
which governs Ihr puwcrs excorisaldc by
m inirip:dities has been ch:ogrd by Article
VIII, Section Z(h), 1908 Florida Cuuslitu
lion.
Article Vill, Section 8 of the Consti0n
tion of 1885 reads,
"The Legislature shall have power Ill
establish, and to :dudish, ouuicipalitics
to provide for their government, to fire -
scribe their jurisdiction and powers, and
to alter or :,mend the same at any time
Section 2, Arlicle VIII of our neu, 1968
Constitution provides,
Na) Establisluncitt. Municipalities may
he established or abolished and their
charters amended pursuant to general or
special law . . .
"(b) Powers, Municipalities shall have
governmental, corporate and prupriclary
powers to euahle them to conduct mnmiri-
pol government, perform rnnniripal func-
tions and render municipal services, and
may exercise any power for municipal
purposes except as otherwise provided by
law." (I•:mplasis supplied)
(1-3) That the paramount law of a
municipality is its charter, (just as the
,'lane Cnnstitutino is the charter of the
State of Florida,) mud gives the municipal-
ity all the puwcrs it possesses, unless other
statutes are applicable thereto, has not been
aftered or changed. (Iontz v, Cooper City,
(Fla.App., 1970) 228 So.2d 913, Clark v.
North Ray Village, et al., (Fla.1951) 54
So.2d 240. The powers of a municipality
are to be interpreted and construed in rcf-
rrence to the purposes of the municipality
:and if reasonable doubt should arise as to
whether the municipality lrossesscs a spe-
cific power, such doubt will be resolved
against the City. I.ilteris v. Harper (Fla.
1925) 89 Fla. 477, ILLI So. 853. "Municipal
cooporations :ac established for purposes
of local guvenuncnt, and, in the absence of
specific delegation of power, cannot en-
gage in any undertaktugs not directed im-
mediately to lite accomplishment of those
purposes." Hoskins v. City of Orlando,
Florida (5th Gr., 19.11) 51 F.2d 901. The
aforestated holding of the United States
Fifth Circuit Court is entirely consistent
Willi the 1968 change in our Constitution.
The Charter of the City of Miami Beach
does riot authorize UIe City of Miami
Rcarh the power to coact a rent control
ordinance. Sectiun 6 of the Code contains
no mention of such a power. The only
possible source of such a power is Section
6 (x) which permits the City "to adopt
all ordinances or do all things deemed neces-
sary or expedient for promoting or main-
taining the general welfare, comfort, edu-
cation, morals, peace, health and eonveni-
core of said city, or its inhabitants and to
exercise all of the powers and privileges
conferred upon cities or towns by the
General Law of Florida when not incon-
sistent herewith."
I`
L�
0 0
804 ]ria. 201 SOUTHERN REPORTER, 2d SERIES
9'11r Wright of aluhorily is that without
specific :uuhoruahuu !loan the state, the
cities cannot e(c(et it reed control unhnaner
either purulent In its specific ulumcipal
powers or under its Gcntral Wrlfmr pro-
visions. Warren v. City of I'll, luulcl pnla,
(1956) 3X7 Ila. 362, 127 A.2d 703, Ileubeck
v. City of Baltimore, (1951) 7.05 Md. 203,
107 A.2d V), Grofu Realty Co. v. Ilnyoune,
(1957) 21 N.J. -192, 132 A 7d W2, Wagner v.
Mayor and Municipal C'utlnnl of City of
Newark, (1957) 24 N.J. 467, 132 A.2d 794.
(4, 5) Leel governments have not hren
given omnipotence by home rule provisions
or by Article VIII, Section 2 of the 1964
Florida Constitution. "Malters that because
of their nature are inherently reserved for
the Slate alone and :unung which have been
the master and servant and landlord and
ICIIat1I relatlullshlps, loaners ((f descent, the
administration of estates . . 'and man)'
other matters of general and sudewide sig-
nificance, are not proper subjects for local
treatment. . . Wagner v. Mayor
and Municipal Council of Newark, supra,
at 800. Mr. Justice Cardozo, in Adler Y.
Deegan, 251 N.Y. 467, 167 N.E. 705, 713
(Ct.App.1929) made the following statement
which is in support of the abocestated prop-
osition,
"There are other affairs exclusively those
of the state . . . None of these
things can be said to torch the affairs
that a city is organized to regulate, wheth.
er we have reference to history or to
tradition or to the existing forms of
charters."
Furthermore, since the inception of fed-
eral controls after the beginning of World
War Il, legislative history and the develop.
ment of case law shows a recognition that
rent control was not a matter within the
realm of municipal power without express
authority from the state and the existence
of an emergency—as hereinafter discussed.
Wagner v. Newark, supra. The Supreme
Court of Errors of Connecticut has held
that a city charter conferring police power
in general terms did not empower the city
to alupt a rent control ordinance. Old
Colony Gw'dens, Inc., ct al. V. City of
Stannfonl, rt nl., 147 Conn. 60, 156 A.2d
5 i (195'4).
(6) -he $tate of Florida though legis-
lative acllun has enacted statutory provi-
sions to regulate the landlord tenant re-
lationship. Chapter 83, Fla.Slat.F.S.A.
Absent a legislative enactment authorizing
the exercise of such a power by a munici-
pality, a municipality has no power to en-
act a rent control ordinance.
(7) In the area of rent control legisla-
tion in general, the Supreme Court of the
United Slates has placed severe limitations
on the power of state governments in the
arca of rent control. When such legisla-
tion is cnactcd, deprivation of rights un-
der the [:,fill and Fourteenth Amendments
to the Gmstitution of the United States,
and freedom to contract are at stake.. The
only justification for the utilization of
such legislation found by the U. S. Supreme
Court is an emergency. Marcus Brown
(folding Co. v. Feldman, 256 U.S. 170,
41 S.Ct. .165. 65 L.Ed. 877 (1921), Lincoln
Building Associates v. Barr, I N.Y2d 413,
153 N.Y.S.2d 633, 135 N.E.2d 801, appeal
dismissed 355 U.S. 12, 78 S.Ct. 12, 2 L.Ed.
2d 20. Emergency has been narrowly de-
fined. An increase in the cost of living
(an inflationary spiral) alone is not a justi-
ficatiun for rent control legislation which
limits the amount of rent which a tenant
may be required to pay. Chastlelon Cor-
poration, et al. v. Sinclair, et al., 7.65 U.S.
543, 44 S.Ct. 405, 68 L.Ed. 841 (1924).
Explicitly designating the type of emer-
gency schich would be a viable basis for
such legislation, the United States Supreme
Court has held in Levy Leasing Co, v. Sie-
gel, 258 U.S. 242, at 245, 42 S.Ct. 289, at
290, 66 L.Ed. 595.
"The warrant for this legislative re-
sort to the police power was the convic-
tion on the part of the stale legislators
that there existed in the larger cities
of the state a social emergency, caused
by an insufficient supply of dwelling
It Iegis-
provi.
am Icy
.F.S.A.
prizing
nuuici
to Co.
egiO.,
of tilt
Ldions
in the
cltisla.
15 1111-
Iincul s
itales.
The
m of
plied).
(8J As regards the ntennd issue in-
volved hcrl'ul, this Court finds in reviewing
IIIc constitutionality vel 11011 of the rent
control ordinance that spnhc of the provi-
sions annual to :n uoLlwful dcll l^anion of
legislative authority by the Cit' Council
of the (:iiy of 1lianli Ileaeh without appro.
priate guidelines or the fixing of the outer
limit.•, as to the discrctiuu involved. The
Urdinanee, anlung other things, provides:
170, "Section 16 A.2. Definitions:
ncolu
141.1, A. except for:
pparl (e) Certain high rental or special ac.
1..17d. commodations such as condominiums
y de- and co-ops whose tenants of the
iving opinion of the city rent agency, do
lusti- not require the protection of this
vhich Ordinance.
Cur.
U.S.
Y24).
mcr-
for
'Colt
Sic -
t, at
rc- i
%IC -
tors i
lies
Is
Section 16 A.4. General Powcrs and
Duties of the City Rent and Relthbilita-
tion Administration:
A. The city rent agency shall establish
maximum rents which shall be those
rents in effect on September 1, 1969.
R. Such agency, however, may correct
or set aside any rent resulting from
illegality, irrrgularity, or fraud.
C. Such rents shall be established having
regard for those factors bearing on
the equities of he ,,tatter.
.. ,,.,..J. .
(9] The s:mu• restrictions which apply to
the Legislature's delegation of legislative
authority also apply to lite enactment of
municipal ordinances under the general po-
lice power by mtmicipalilia in that city
ordinances In ust not eolMilmr all improper
dclegalinn of legislative, executive or ad.
nlioistrative power. Illitch v. City of Ocala,
132 Fla. 612, 105 So. 406 (1910). It
has Leen previously held by this Court in
Smith v. Purlante, 212 Su.24 298, 299 (Fla.
11X)8), that:
"No matter Lav laudable a piece of legis-
lation may be in the minds of its sponsors,
objective gufdefines and standards should
appear expressly in the act or lie within
the realm of reasonable inference from
the language of the act where a delegation
of power is involve(] and especially so
where the legislation contemplates a dele-
galion of power to intrude into the pri-
vacy of citizens." (Underscoring added).
The rent control Ordinance at issue in the
instant case does not contain objective
guidelines and standards for its enforce-
ment by the City Rent Agency nor can
such be reasonably inferred from the lan.
guage of the Ordinance.
(10] Unrestricted discretion in the ap.
plication of a law without appropriate
guidelines and determining its meaning may
not be delegated by the City Council to
an agency or it, one person. Stewart v.
Stone, 130 So.2d 577 (F1a.1961): Amara
v. Town of Daytona beach, 181 So.2d 722
OI'lY OF MIAMI Ii1;A011 v.
YIXETW00D 170TEL. INO. Fill. 805
Ilh
, 1" I Ku Yd r+a
lunlsrf :,fill d1411'Il,lrlll'•, Sn !tear" that it
I'. Foilllrl adj116111 vol, of olaxinluol
conalitlned a sell "it, uu'uat c In the health,
rents may be made by the city rent
morality, comfort, and even In the pearl.
agency where:
of a large part of the people of the state.
That such an vnwr;eucy, if it really
existed, would spelain a rr!.orl, olherwher
valid, to till' police power for the purpanr
(I) Shullld a landlord perinit housing
Of dealing will, it cumin he doubled, for,
violations to exist beyond a reasonr-
uulcs, rclicvrd, the public welfare would
able lime, then the city rent agency
suffer u1 respects which constitute the
shall have lite lower to decrease the
primary
I Y Iundisputed, :n wall as Ihr
rem until the clanger is eliminated
most aura -II basis and justification, for
"
. • (All underscoring added).
exercise of shat pnwer." (emphasis sup•
plied).
(8J As regards the ntennd issue in-
volved hcrl'ul, this Court finds in reviewing
IIIc constitutionality vel 11011 of the rent
control ordinance that spnhc of the provi-
sions annual to :n uoLlwful dcll l^anion of
legislative authority by the Cit' Council
of the (:iiy of 1lianli Ileaeh without appro.
priate guidelines or the fixing of the outer
limit.•, as to the discrctiuu involved. The
Urdinanee, anlung other things, provides:
170, "Section 16 A.2. Definitions:
ncolu
141.1, A. except for:
pparl (e) Certain high rental or special ac.
1..17d. commodations such as condominiums
y de- and co-ops whose tenants of the
iving opinion of the city rent agency, do
lusti- not require the protection of this
vhich Ordinance.
Cur.
U.S.
Y24).
mcr-
for
'Colt
Sic -
t, at
rc- i
%IC -
tors i
lies
Is
Section 16 A.4. General Powcrs and
Duties of the City Rent and Relthbilita-
tion Administration:
A. The city rent agency shall establish
maximum rents which shall be those
rents in effect on September 1, 1969.
R. Such agency, however, may correct
or set aside any rent resulting from
illegality, irrrgularity, or fraud.
C. Such rents shall be established having
regard for those factors bearing on
the equities of he ,,tatter.
.. ,,.,..J. .
(9] The s:mu• restrictions which apply to
the Legislature's delegation of legislative
authority also apply to lite enactment of
municipal ordinances under the general po-
lice power by mtmicipalilia in that city
ordinances In ust not eolMilmr all improper
dclegalinn of legislative, executive or ad.
nlioistrative power. Illitch v. City of Ocala,
132 Fla. 612, 105 So. 406 (1910). It
has Leen previously held by this Court in
Smith v. Purlante, 212 Su.24 298, 299 (Fla.
11X)8), that:
"No matter Lav laudable a piece of legis-
lation may be in the minds of its sponsors,
objective gufdefines and standards should
appear expressly in the act or lie within
the realm of reasonable inference from
the language of the act where a delegation
of power is involve(] and especially so
where the legislation contemplates a dele-
galion of power to intrude into the pri-
vacy of citizens." (Underscoring added).
The rent control Ordinance at issue in the
instant case does not contain objective
guidelines and standards for its enforce-
ment by the City Rent Agency nor can
such be reasonably inferred from the lan.
guage of the Ordinance.
(10] Unrestricted discretion in the ap.
plication of a law without appropriate
guidelines and determining its meaning may
not be delegated by the City Council to
an agency or it, one person. Stewart v.
Stone, 130 So.2d 577 (F1a.1961): Amara
v. Town of Daytona beach, 181 So.2d 722
0 0
yri,r — .....+W.:..4�s-,i.,,... u,.u.4....-.�a.�-.....:wl.a•-- ..... �Ik._ _--__"_'..�+ri..w
800 Fht. 261 SOUTILER11 REPORTER, 2d SERIES
(Fla.App. Ist, M61)). In Dickinr.nu v. Stme,
227 So.2d .36, 37 (FIa.1969), this ComI said:
"The exact nicanmg of the rv,jon meal
of a sland;od has never been fixed. Thr
exigencies of muton govenoneut h.,ve
increasingly dirt; -led the use of genrrd
rather Than minutely detailed standards in
regulating comunruh under the putter
power. However, when slalutes ddegxtc
powcnWilli inadequate procrtion agaiusl
unfairness or favoritism, and when such
protection could easily have been proved.
ed, the reviewing court should invalidate
the Icgeslatiou. In other wods, the leg.
islative exercise of the police power
should be so clearly defined, so limited
io scope, that nothing is left to the un-
bridled discretion or Whim of the ad-
minkiralive agency charged with the re-
sponsibility of enforcing the act. Mahon
v. County of Sarasota, 177 So.2d 665
(FIa.1965)."
"An ordinance requiring a nurscryy to
obtain a certificate showing that it 'Iliad)
been approved by the Florida State 1Vcl-
fare Board' was held invalid in State
ex rel. Ware v. City of Miami, 107 Sn.2d
387 (FIa.App. 3d Dis(.1958), the Court
saying:
"'A% drawn. the effect mf the ordinance
is to cooler upon the Stale Welfare
Board the authority to grant approval
to one yet withhold it from another, at
whim, and without guides or accounta.
bility.'
"Sec also, Yellow Call Company V. In.
galls, 107 So.2d 844 (Fla.App. 2d Diet.
1958); Barrow v. I lolland, 125 Sold 749
(F1a.19(A); Lewis v. Florida State hoard
of Health, 143 So.2d 867 (Fla.App. Ist
Dist.1962); Amara v. Town of Daytona
Beach Shores, 181 So.2d 722 (Fla.App.
Ist Dist.1966)."
Yet, as provided for in Ordinanre No.
1791, Scction 16 A.3, the City (tent and
Rehabilitation Administration established by
this Ordinance shall consist solely of one
individual, (lie City Rent Administrator. In
this single individual is vested unbridled
discretion to drlermine which aceommuda-
tiuns aie to be controlled and a number
of other things. Sec Section A.2(e), See-
lion
eo-lion 14 AA(A) (B) (C), (F). This Churl
held in ils recent opinion Municipal Court,
City of fort Lauderdale v. Patrick, 254 So.
2d l')3 (opinion filed October 27, 1971)
which involved the deltgation of authority
to the Mayor to establish curfews:
"llistary leaches us, however, the danger
of vesting total power in a single in-
dividual without controls or restraint,
even in an emergency."
111, 17.] As to the third issue, we agree
with the finding of the trial court that this
rent control ordinance dues conflict with
Florida Statutes Sections 83.03, 83.07, 83.(V
and 83.20, ),.S.A. Municipal ordinances
are inferior in status and subordinate to
the laws of the State and must not conflict
therewith. If duuht exists as to the extent
of a power attempted to be exercised which
may affect the operation of a state statute,
the doubt is to be resolved against the or.
dinance and in favor of the statute. City
of Wilton Manors v. Starling, 121 So.2d
172 (Fla.App.1960), City of Coral Gables
Y. Seiferlh, 87 So.2d 806 (F1a.1956).
Section 16 A.5 1) provides:
"It shall be unlawful for any person
to removc a housing unit front the nnar-
ket if the same will result in eviction."
F.S. 8.3.01, F.S.A. provides a tenancy at
will may be terminated In either party
upon giving of specified notice. F.S. 83.04,
F.S.A. protides that a tenant who holds
over after a written Icnse has ex•,iuvd is
a tenant at sufferance. F.S. 8.1.06, F.S.A.
provides that a landlord may demand and
receive double rent from a tenant who rc.
fuses to give up possession. F.S. 83.20.
F.S.A. provides that a tenant at will or
sufferance may be removed from the prem.
ises, n4cled, if he holds over and couum
urs in possession of the premises after the
expiration of his time.
I
In
idled
Ioda.
ober
Sec-
:ourt
mule
Iso.
971)
Idly
Iger
in.
lint,
I
l
;rce
this
villi
1.06
ices
If,
lict
C.
is —
0 0
CITY 01' MIAMI BEA0H v. YIdIII19VOOD 11011:4 INC. Fln, 807
rt',• �,.. I'm .:•n, ;.,, ;.I rn
'I'bc Incl court Iter uq; neat, rrtly held 1 I '10,it F.S.A., ahIJ1 •.I.i l ul nal) imple.
Uldmllive invalid, aide[ nu tevers3biv error men,, that nnretitulimlal provision. The
haviul; hero nulde In apPrar, the judgnu'nl majnril)Ilas lot ally igunn'd the intent and
under rrview is affirno',l. plain nu,uuug of these ov%% scetious. IIs
It i, ser urdeled. hoLlin): sell this paint well return to this
slate the plelhnla of lord hills, ehich evil
was s,q,po,cdly r,lo•iab'd lye Atticic VIII,
CAHITON, ADKINS :md 110YI), JJ., Sec000 2(h). 'Ibat se,tion provides:
rcsliuu'.
DI. ,KI.I':, 1., %mean•, uI pant and dissuvls
in pail with opinion.
ERVIN, J., dissents with opinion.
McCAIN, J., dissents.
OEKLE, Justice (concurring in part and
dissenting in part):
I re,pectfully (lisscul from the nl.,jurity
view on till- first issnr (issue,) holding that
a rily in Flurida dov, not have the pnwrr
to euad a reit routnl urdonance :old fur
ther holdup; that It n. au nnL•rwful dcleg•,
lieu of legislative authorlly. In tlncst•
I e,pW'Id I cuneur with lu'di'c :win's :dile
di%%Cln, based upon the thauge brought
abut'[ by the people's vote in the 1068
Constitution in Fla.Const. art. Vlll, § 2(h)
(1769), and the cases riled.
I do concur in that part of the majority
(and disagree with Justice Ervin's view)
on the second point that the Miami Beach
Ordinance is deficient because it docs not
set forth sufficient yuidelinus and standards
to meet constitutimtal requiranenls.
ERVIN, Justice (dissenting);
1 cannot agree with the majority's con-
clusions.
The majority holds, first, that the City
of Miami Reach does not have the power
to enact a rant control ordinance absent
specific authorizatiml from the Legishmtre
of the State, of Florida. Although such :I
conclusion would fime been correct under
the 1 '.—. Con%tituioa, It is not proper till -
der Article Vlll, Section 20,) of the 1969
Constitution and Section 107.005, Florida
"Alun i, il"ulitirs .droll I..:'r yove,1unrulal,
rnlparalr oil,/ prup,'irhrry powc,s to rn.
able throe he conduct unmiripal guveni-
mcul, prrporm rreoniripal /urcliuns and
rend, r numicipal srrvirrs, mrd relay rx-
rrrise any pon•rr for un,lricipal purposrs
except as olhe,wisr proridrd by lay.
Each Immiripal legiclauve lead shall he
declive." Art. VIII, S 2(I,), Fla.Cow.(.
(Emphasis snpplird.)
Thr cumparahle provision in Iltc IK45 Con-
slitntion, Article VIII, Scclinn 9, was as
follows:
" %hr Legislato'e %hell have power to is.
lahlish, and to ;d,nlisln, muuiripalilic% /a
ln',r,'iJr /err Ihrir �/m•rrumrul, In pre".cr the
their jnri,diclioo and pmvrrs, and to alter
or amend du• same at :mv lime. liel
any nuuniripallty shall be aholishrd, pro-
vision shall hr mrule for the protection of
its cledilors" (limphasis supplied.)
The difference in the two provisions is
obvious. Under the eanctr constitution,
municipalities had only sec11 puu•ers as
we1'c specifically granted them by the Leg.
islature. "Legislative control over cities
[%%as) ohsolute, sul,jecl only to the
restriction that it' shall out runtavene some
provision of lire Constitution." Collo v.
O'llryant Fla.1959, 116 So.2d 233, 236.
The converse is now true. The 196.4 revi-
sion to the Florida Cnnstitmiml has given
onmicipalities govrnunent 1, corporate, and
proprietary powers to ctuto municipal leg.
islation unless othrrw'ise prns•idcd by law.
Commcmary to Art VIII, S 2(h), 26A F.S.
A., pp. 291, 292.
Under the pertincnl section of 19uridn's
Collsthoion, therefore, n numirip:lily tory
enact a rent control ordiurmce without re-
ceiving specific authorizatiml from the
I,—
0
��,�,•-�...n...�,.....i/h�llota....w..Jnwrsu.., �.w,--.-•�••a�rn.L. •._-- _ .•�a�11rA�YirYSW.,.in—_ ..
808 Plmm. 261 SOUTHERN 1tproRTElt, 2d SMUER
Stale Lrgi•.L,lun• if (1) 1,111 nnllr ul ma a
unmicipal hutrtuu :md 12) ting g, ua nm-
Irmy or sopciscdnl: Irg,sbrtgm. %little
VIII, $croon 2(I), plan, na admr luuita-
lions un a lumnnpahly's powcm 1„ coact
utdimnces.
It secuu clear to tit that rent root rol
cm he a olmocipal foirtinn. A,, „rd, War.
jell V. City of I'll di'drlplu:,, 19.55, 382 Pa.
3.w), 115 A.2d 218; Ifcnbi•ck V. City of
Baltimore, M d.App,1951, 'W 114. 20.5, 107
A.2rl W. The housing problems Of a com-
munity are unquestionably the concern and
responsibility of the guvcrnnment of that
city. Without adegtrrlc, dCL'lnl housing a
city rannol function as a modern pracefol
community. Unchecked spiraling rents
C:111 destroy It. Certainly Ihnsc Closest to
the problem, the penplr of Ihr affected Inn-
nicipalily, arc the ones moll able if, recog-
oiu• and tdlempl to cure an nmluwat'd con-
ditian.
It is equally clear thal there is no con-
tras' or superseding; legislation preventing
the City of Miami Beach front enacting
this rent control ordinance. The majority,
as its lhitd point, holds the ordinancr is su-
perseded by Chaplcr 83, Florida Statutes.
Stich a position is totally untenable. The
chapter deals with the (h ration and termi-
nation of nonfrechold estates, rent, re-
moval of tenants, and deposil mone). No-
where docs the chapter mention rent con.
trol. (fent control Ims to do with trots to
be paid—nothing else. Chaplcr 83 docs tint
relate to the amount of rents to be paid.
There is nothing in the existing laws de-
nying a Florida onuticipality the power to
enact a rent control ordinance. The Leg-
islature, by general law, has not entered
upon nr pre-anpted Um field. Likewise,
there is no special law denying the City
of M mini !(each the power if, adopt a tent
control ordoumce. Nor is there anything
in the Dade County I ionic Rnlc amendment
(Article VIll, Section 11, I:4:85 Constillr
tion, which continues ootid a new home rule
charter may he adupted under the 1908
Constitution) precluding adoption of a rent
caulnd ordinance I.y the City of Miami
Reach. rind there is nolhing ill clic City
of Miami Ilrach's Charter precluding, it
firm adopting such ;tit ordivanev. lit fact,
I find, omimiy to the umjornr's conclu-
sion, that the Charter specifically mtthor-
U.ls ns e•nammenl.
Rent control Iegi.dallot is considered a
proper evccisc of the legislating body's po-
lice puwcr as found in its cotRlminllnll or
charter. Old Colony Gardvns v. City of
Stamford, 1959, 117 Conn. (A, ISG A.2d
515; Block v. Hirsh, 1921, 256 U.S. 135,
dl S.Ct. 458, 65 I..Fd. 8615; Warren v. City
of I'hdadt•Iphm, supra, and Ilcubeck v. City
of Ilahunore, supra. The majority has cit-
ed Old (:alum' Darden, v. City of 'A-1111-
fold.
langford, sepia, as holding "a city charter
conferring police power in general terms
did not , nmpotver the city to adopt a rent
contrul urdooce." ']'his imerlamitiot of
that decision's holding is mislcrding. The
Supreme Cmnrl of Errors of Co nectieut, in
Old Colony Gardens, held a moricip;dity's
rent control todinnce invalid bmitvx that
state's legislature had "declared . . .
that as a utaltrr of public policy controls
were no longer necessary in the interest
of the public health, safety and welfare.
. . . Municipalities cannot enact ordi-
nances contrary to the public policy of the
state as declared in stale legislation." Old
Colony Gardens v. City of Stamford, supra,
156 A.2d it 517.
The Charter of the City of 'Miami
Reach contains the following police power
provision:
"See. G. Powers of city generally.
"The City of Miami Beach shall have
the puwcr.
"(x) To adopt all ordinances or do all
dons dermed ncerssary or expedient
fur promoting or maintaining the gnry
cral welfarr, romfort, edutation, mor-
olG, prnrr, Imralth and romenienrr of
Paid city, or its inhabitants and to cxcr-
eise all of the powers and privileges
f Al lmui
the llly
filling it
in fact,
cunt l
author.
CITY OI' MIAMI BLACII V. 1'[xri•MOD HOTEL. INC. Fin. 809
rm a., rm .:4M .S.. •d nal
cunferird upon ,Ibis nr 1 --was 1-1 the lc,v ill Ibe ticu.,clei nr nadide of the
gcomll low of Plurnla, when not aeon roodnaol to Iw temedied and all cireuin.
silt cot heI cwitII." IVIIIpllasi•; sup- S1.111•cs Ichliug thereto."
plied.)
This section is sufficient fu give file Cily
the power to enact n rent cmnrol mdi-
wune; • police pnwet provisions do not
need to specifically cununelau: those arras
in which they authorize IelPslaliou. See
State ex rel. 1: :Ills v. Tampa Wale reorkn
Co., 11,08. 54 Pla. 8.58. 47 So. 358. 'Phis
Croat has fregoenlly upheld nnuti611:d or
tlitl:nleex as proper exerr'Isw. of police pow-
er on illy authority of In'n%v-ions in muniri-
pal charters similar to Srauon 4(x) quoted
above. State ex r, -I. Ilnsack v. Yocum,
1239, 134 Fla. 214, IS(r So. 118 (urdin:uhce
prohibiting taxicab drivers from soliciting
for hotels the patrmlage of their passen-
gers); City of Mial li v. Roomer, Fla.1952,
58 So.2d 819 (ordinance rctablishinl; set-
back [equircmcnls); Cily of Miami Beach
v. Ilugau, l la.1953, 43 So.?(] -IQ (orth
nano• srrl:inl; In acquire properly for a
public park).
The lest of whether :nu ordinance is a
valid exercise of a city's police power wax
announced by this Court in City of Miami
V. Kayfctz, Fla.1957, 92 Sa.2d 798. Thcrc,
ai X11-802, we said:
"[C)aurls should be very cautious in de-
claring a nunticipal ordinance unreason-
ably, there being a peculiar propriety in
pennitting the inhabitants of a City
through its proper officials to detenuinc
what rules arc necessary for their own
local government.
"Tile test is not whether we think it a
wise measure or the hest means of ap-
proaching a problem, hill rather whether
it has a rational relation to the public
health, murals, safety or general wel-
fare and is reasonably designed to correct
a condition adversely affecting the pub-
lic good. And the lest most be applied in
Of ran r+r, es 1 indwalyd fir., herrin, nie
IINIv Florida Conoinlliol, cicrr the Chy
of ylimni Itrncll the t•,wer to enact flip
261 S. r 1-51 N
'Phis oldomme meets the h-opfetz test.
A prnpused dr:df of the tollm n ce contain-
ed the follow,,,,; Lwgnagc which described
the con illious in tlw City of Miami Beach
al the lime fill. urdin:one was proposed:
"It shall he noted that an emergency
Imusi n;; situ:dinn exists mi Miami Beach.
That such emcrgenry is brought about
by au acule shortage u! .aafe, sanitary
and adcgmue low cost rcubd lousing ac-
conmuulatiuns. 'Thal the majurity of
residents :oc senior cilizens on sub-
sislence level pensions and cannot afford
the existing Inns for the availahlc hous-
ing. Thal said rents arc inctcasing at an
inflaliommy spiral whereas the income
of the residents remains fixed. That the
pufillation increases daily title ht an in-
flux of tuurisl•. and l'uLan refugees."
A rccenl report oil the 1070 Census shows
,flat the percculage of rldelly icsidcnts in
Mtianli It-ac•h has inert :w -cd 170 per cent
hrtween 19411 and 1970 and !hat flow 55
per cent of Miami Reach's population is
over the age of 47..
The public good unquestionably must he
adversely affected by skvrockcling rents
coupled with a sudden and unusual pressure
for housing. hent control is the logical, ra-
tional means of immediately coping with
this problem. The situation in bfiami
Beach today is similar to that during life
Second World War in communities
throughout the United States in which arm-
ed forces nor defense indo%lrics were local -
cd; in those municipalities there was "an
acute shortage of rental housing accom-
modations" and "a marked upward move-
nwnt in the general level of residential
rents." llowlas v. Will i nl;lla fit, 1941, 321
U.S. 503, 504 if. 1, fel S.fa. 411, 473, 88 1..
I<d. 892. In an attempt to stabilise and re-
duce rents, anlmlg other things, the Con -
rent muir,d pr•linnun• and If in Imran•
lerinl vilvilier the lolly (hunter ranlnlnr
authority tilt it.
I �
`.
0 0
g(p I111. 201 90U'111MLN 10WOICTER. 2.d SERIFS
Errs% enacted the I•:use•, gentry I'rire I Im.
trol Act of 1712. 'I hr Suprrmc 11,nrt of
the United Slates upheld tlo• trill r..utrol
purliuu of the Art in Movies V. Willnigham,
supra.
Only :a fell( c
and effectively'
lack of h,mmnl:
Calls& of die ca
(leach, I fmd h
City's rent rout
file.c. II dearly :,fill mop CS6111 ably mrclS
the lint'frl. Inalidate that "it fhave]
. . . a rational rdll In the public
health, moral•., safety or general wel are
and (h) . . . reasonably dcsigucd to
correct a condition aderrsely affecting; the
public
The maj,luty holds, sceoodly, "that smile
of the provisiuux [of the rent eouleol ordi-
nano
ce] nonmt to an unl.lIvful delcgatinn of
lCgislalivc aunlhnrity by the City Council of
the City of Yliami Reach without appro-
I-te •uirldincs or the firing of the umer
and Spir,Jnq; milt. d." I do
unlrol art Vali nmmt-h:eclyPin 6
renu,ly the Iwim d•,ur by, limits as to tine discretion involve
Ile. lint agice.
veru( rmudnum m
Miami Thf
The Suprew.; uurl of the Unit
inqur...iLlr tut ruuclmte the in cuusidering the question of
Cul aldinance is to, wiNun- of IcgiShdive withorit', has said:
In addition, the onh".1oce meets tilt. Levy
Leasing Cil. v. Siegel, 1922, 259 l'.S. 2.12,
•12 S.(r. 299, 66 I. -Ed. 515, cmrn;cncy lest
riled by lire majority. The record shows
the (:ily of Miami 6cach is faced with "a
social emergency, caused by :,fl iusuf ficicnt
Supply of dwelling muses and apm
nutculs,
Sar grave that it conslilulef s) a serious men•
ace to the health, morality, comfurl, and
even I" the pcacc of a large part of lite pcu-
plc of the 11"ity'). . . . ' Levy Leasing
Cos. v. Siegel, supra, at 245, •12 S.O.at 290.
This ordinance was not enacted solely be-
cause of all "inflationary spiral." It was
wtaeted became a cumposite of conditions--
a rapidly iorrcasiug nunnh&r of inhabitants;
a majority of elderly residents with fixed
incracs; spiraling rents, and insuffiricnl
huusing—created all emergency situation in
the City'.
For the above reasons, I have concluded
the majority, in answering its first question
("whether or not the City of Miami Beach
has the power to enact this rent control
ordinance") ill the ucg:rtive, has ignored
the (lain, clear. unambiguous Language of
Article Vill, Section 2(h) of this State's
Con stit set ion as well as Recisions of this
Court nod of the Supreme Conn of till'
Iluited Stades. I find the law of I111'.St: to
of Florida &-manic the question he an-
swered in the affirmative.
cd Sutcs,
del, gation
"• Itis nnuulate of the Constitution, art. I,
§ 1, Ih:it all legislative powers gr:udcd
'shall he vested' in Congress has nev^r
heel drought to preclude Congress from
resorting; to the aid of administrative nf-
ficcrs ni Luanls aS fart -finding agencies
whose findings, marls in conformity to
previously adopted legislative standards
or definitions of Congressional pnlicy,
have brcn made prerequisite to the op-
eration of its statutory command. The
adoption of the declared policy Ly Con-
gress and its definitinn of the circum-
stanves in which its command is to he
effective, constitute the performance, in
the constiudional sense, of the• Icgislatiot
hmctiont." Opp Croton Mills v. Admin-
istrator, 1441, 312 U.S. 126, 144, 61 S.CI.
52.1, 572, 95 t..lfd. 62.1.
Tintc and again this Court has held:
"The Legislature may 3101 delegate the
power to enact a Ia\\', or to declare \vital
the law shall IM, ur to exercise an un-
restricted discretion ill applying .1 law;
hilt it may enact o furl, complete ill itself,
designed to accotttplish a general public
purpose, Told may ext ressly aathori:r dcr
"Plated officials uithin definite solid
limitations to provide rides and regula.
lions for life complete operation wd lir
fartemrnt of life Imo •milhin its rrpresr-
rd general purpose. This principle of
the four is peculiarly applicable to regu-
lations under the polire power, since the
complex and evrrchanging conditions
that .1114.1111 and affect such matters Illwic
it impracticable for the LegislarrC to
prescribe all necessary rules and rrgi la -
M
ate the
e what
an on.
a law;
I ificlf,
public
r valid
regula-
nd em
"Ile
of
regtr-
ke the
ditions
made
CITY OF MIAMI It11A011 v. yI,1:1;q•W00I) IIOTEI„ )NO. FIn• 811
tions." Bailey V. Van I'rh, 1910, 78 1'1a. the lypt of gnu close, they have hrell given
337, .1511, 92 So. 789, 711. t I(nq,h:1,11 n: the I(•gishltion esial,li long their agcncics.
supplied.) Ex Palic I.r.whs, 1031, IUI
Fla. 62'1, 135 So. 147; {;night & \fall •I'hc lily of isliano Pras•h I(rot Control
Co. v. Ilryant, Fla.l!KS, 178 So.2d i, Agem'y's riliddlon air set forth in See-
eeri. denied 383 U.S. 168, W] SA.I. IP. i, t`" IMA of the ordioance. The section
16 1-1:11.2d 301, ns entitled "General fusers and Unties of
t11c City Rcol anti RthabiliLlion Adminns.
The trot control m•diu:unre of the City
of Miami Beach is a law ellacled hy the
proper Irgishdivc holy, Ili'• Pity Comn•il, nn
acennhplish a general polder purl,ow. On
control of rents. It anthoril`0 the (]ty
(tent Agency to accomplish this final. Lim-
itations all the agency's power, as well as
definite guidelines to be followed Ic)' the
agency, are written into the ordinance.
Contrary to the majority's implication,
the entire rent control authority is not yl -
ed in one individual, the City Rcnt Admin-
istrator. Section 16A.3.0 of the ordinance
provides:
"Thele shall be all advisory cnuunitive
rnnlpmed of not Irv; that] 10 1114-11IN Is
Willi shall be appointed by lite city roun-
cil. The cnmmittr e shall he provided by
the administtalor with all data ncres-
sary for it to advise and cous]dt with
the mayor, council, and administrator a]
policy matters."
In addition, the City (tent Agency is a
branch of the Miami Beach government,
similar to other city agencies. As such, it
is subject to the controls which the Mayor
and City Comcil normally exercise over
city agencies and is accountable to the
Mayor and City Council for all its actions.
Ilowevcr, even w'ithmtt this advisory
committee and other govennnental con-
trols, the ordinance should not be held un-
eonslitution:d because it established a one-
man rent control board. The Supreme
Court of the United Stairs has upheld sim-
ilar onednan Agencies. llnwlcs v. %V1111ng-
ham, supra, Opp Cotton Nlill% v. Mininis.
trator, supra. It is not the number of ad
ministrators that Is important, but rather
tralion;' and provides as follows:
"A. The city rent tglcncy shall establish
umxinnnn lents which shall he those
rents in effect on September I, 1969.
,,If. Such agency, however, may cor-
rect or set aside any rent resulting front
illegality, irregularity, or fraud.
"C. Such rents shall he established hav-
ing regard for those Lectors bearing on
the equities of the ordter.
"U. A survey by the city rent agency
shall consider All factors affecting rents
to detcnuinr the effrctweures of lite pro -
grain cud to make adjusuocnts.
•fhc city rent agency may adopt,
amend, promulgate, or rescind any roles,
orders, or regulations it deems necessary
to of feel this ordinance and its purposes,
and subpoena persons or data and records
from whatever source.
"I.. Further adjustments of maxiuuun
rents may be made by the city rent
agency where:
(a) The rental income from n property
yields a net annual return of less than
loa/o of the invested capital of the
property. The means of valuation shall
be determined by the city rent agency
and made available to the public.
(I) The landlord and truant earn agree
to a rental increase fnr a two year
Zero, but which shall not cyceed IIt7"
of the present rent.
(c) 9'Iie landlord and tenant can agree
to decrease or increase the fachh-
a—
I �
0 0
-.:::�.: .. _._...__.._.-_..__._.......__7r:s�sti:'r..x,•.�.:.uat:ttst*1SC".x:::s).�rcSt_�r: �r��c�....._.,.
i
812 Fill. 261 SOU991ERN IMPORTER, 2d SERIES
Iles, crevice, fill uislliogs, • oh,l:ud].Illy.
ruuugh to warranl :1 rent adj ustuu-ul,
or
(d) Where lbcre has Leen suhslanli.J
untetcd rehaLilitalinn 'if the acrunr
and:, ons and/or pr.,hclly nvuhiul:
in added value and nu rc;t M Idr, but
excluding ordinary u,:, ill ria lice.
(c) Whcic there has horn :I majm
capital impruvcmcut recently, requited
fill the• Operation or plow rvatiou of
the sttucture.
(I) Rent increases will not hr allowed
where it tenant has been improperly
evicted so the landlord could make im-
prove•ments to qualify for a rent in-
creaw.
(g) The city rent agency may au-
thorize rent adjumnrnts every year,
such atljusiments to he tied to the cast
of hying.
(h) No rens increases shall he :flowed
if (1) a proper :Igenry of the city or
stale has found housing violations by
the landlord which endanger the safe-
ty or health of the tenants (2) and
landlords are required to certify that
they will maintain all ese.ential services
so long as rent increases arc in effect.
(i) Should a landlord permit housing
violations to exist bcyonrl a reasonable
time, then the city rent agency shall
have the power to decrease the rent
until the danger is eliminated."
This is clearly not "unrestricted discre-
tion io the application of a law without
appropriate guidelines" as contended by the
majority. The provisions of the ordinance
do not appear to be atbilrary or unlawful
or subject to whim lir caprice nn the part
of the rent agency. Rather, they are logi-
cal guidelines and standards reasonably
adapted to the achieveuu•nt of the specific
purposes and objectives of the rent con-
llul o,Ioiuov. The ordinanrr rnulaius :I
specific drfuntum of maximum reins and
enumeralrs specific instances in which fur-
ther arlju.uncns of such rents may be
made.
That Ihr ordinance does placr some dis-
cretion in the hands of the Administrator
is obvious. Equally obvious, however, is
the fact that this :done will not invalidate
it. '1'1,c Supreme Court of the United
States, in United States v. Rick Royal
Co -01), 1939, 307 U.S. 533, 574, 57 S.Ct.
473, 1013, 83 L.M. W6, discussed the issue
of delegation of authority from the Icgisla-
ture to an agency and said:
"Front Ihr earliest days the Congress has
Leen compelled to leave to the administra-
tive officers of the Government author-
ity to determine facts which were to put
Iegislalion into effect and tine details of
regulalinns which would implement the
more grncral rnactmcols. It is well set-
tled, thelefmc, that. it is no argument
against the constitutionality of an act to
say that it delegates broad powers to
executives to determine the details of any
legislative scheme. This necessary au-
thority has never been denied. [citations
omitted] it, dealing with legislation in-
volving questions of economic adjust-
ment, each enactment must be considered
to determine whether it slates tine pur-
pose which the Congress seeks to accom-
plish and the standards by which that
purpose is to he worked out with suf-
ficient exactness to enable those affected
to understand these limits. Within these
tests the Congress needs specify Only so
far as is reasonably practicable."
This Court, speaking through Mr. Justice
Roberts, has previously said "The subject
matter of a statute may . . . Le such
that only it general scheme lit policy can be
laid down Ly the I.egislauue, and the de-
tails of the legislative Policy can Ir•sl be
handled at the atminiWalivc level." Con-
ner Y. Joe Ilatton, Inc., FIaJ(X*4, 216 So.2d
207, 212.
coulhlium. Ihr Fmcrgvncy Price I'ontrul
Act of 1942 Is another example. Sec
Rowles v. Willingham, supra.
In addition to coutatiniug rent control
guidelines, the ordmaider cl(-niy deflnrs
those 11"ming a(milmlodaliom which arc
subject In /cut coulrul as well as Illuse
which :ere exempt. It provides fill all en
forcenittll I?Uferdmq•-. to he cnlllluiled
Ihroupll the Cly Aunrnry of 1lialm IIcach
It eleally will sil"Iflcally lists pl'ollihued
rourhul. Orders of the City Real Agency
are enflim'd "hy ohlailtinlr court orders."
Dur prrcess, therefore, is ;murcd lemons
charged with violaliug the ordin:mce or re-
fusing In follow ;in order of the Agency.
It would be difficult to draft more satisfac.
tory slandaids for enforcement.
I am convinced the ordinance is slid.
The judgment of the Circuit Court of Dade
County should Lc reversed.
When spiraling cosls and invlffirient
housing arc localized, rent control is prop-
erly a municipal matter. Whether we agree
with the policy of rent coulrol is imm:ucri.
al; whether a Imunicipality will zdnpl :1
rent control ordinance should tie left to the
disrictiou of the local city government.
Where not supersede,] by other legislation,
municipal nrdinancrs establishing rent con.
trol politics must he upheld under Article
VIII, Section 2(h) of the Florida Conslim.
tion; they can lie struck down only if it is
shown they violate sonic other commotion.
al provision. The ordinance in this case
docs not.
lfond Validation proceeding. The Cir.
suit Court for Icon County, 1V. May Walk-
er, J.• validalcd expressway bonds and ap-
peal was take[). The Supreme Court, Boyd,
J., held that Wpartmew of Bond Finance
was nal required to comply with notice re-
quirement of expressway authority law in
issuing expressw:lc bonds pledgiug general
rrcdu of state; it wan sufficicnl that De.
Par(urcnl hod conlplwd wills nolico require-
nlct ll-. of slatutc gorerliug validation of
bonds.
Affirmed.
1)cklc, J., dissented.
I. Stales 0-150
Dep:utment of Iloud Financc was not
required to comply with notice require-
ments of expressw• q authority law iu is.
suing expressway bonds pledging general
credit of slate; it was sufficient that De-
partment had complied with notice require•
menus of statute governing validating of
bonds. F.S.A. §§ 75.06, 348.012 el seq.,
348.54; F.S.A.Cousl. art. 12, § 9(c) (5).
2. States G147
Exprcisw'ay aulhority law is inapplic•
attic to issuance of a state Iwud pledging the
full faith and credit of the state. F.S.A.
§§ 75.116, 348.012 ct sell., 348.54; F.S.A.
Coust. art. 12, § 9(c) (5).
David A. Maury, Tampa, for appellant.
Arnold I.. Greenfield and Robert F. Niru,
Tallahassee, for appellee.
KELTON V. DIVISION OP BOND FIN.
OF I)I)PT.OF GEN. SERV. Fla. 813
1'IIn e.. I'll- . !el-
8" '.'.11,13
This is IIIhl11P1t1u I1.Ih y' Itll,• 111 fhl' .III'.l I,f
cwt eonlnd. Amwm- dealing wnll Ilns
Floyd M. KELTON, Appellant,
subject mist hr girru :ulnliucdl al- iso an
Ihorily WilliWillisnffll irnl flrslhilny and 1;1111;111v.
111,1'. to Intel vatymg reunnmi. r..... ell.
DIVISION OF BOND FINANCE OF the DE-
arising from time In burr in pari,, uhl icul
RANTMENT OF GENERAL SERVICES
of the State of Florida, Appellee.
:d min:niuns. The uallon:l w;l{;r, price.
rent, el crura, fill-/(- program is a cur
No. 41757.
rcut example of Iliv necessity of dcb'I;:timl
Supreme Court of Plorldu.
of administrativ'. fl(-xihility and lalondo In
a board or commi•.,.ion whose :Icli,lm caul
April 12, 1972.
va ly dcpcndiu{r upon clanging cconoulir
coulhlium. Ihr Fmcrgvncy Price I'ontrul
Act of 1942 Is another example. Sec
Rowles v. Willingham, supra.
In addition to coutatiniug rent control
guidelines, the ordmaider cl(-niy deflnrs
those 11"ming a(milmlodaliom which arc
subject In /cut coulrul as well as Illuse
which :ere exempt. It provides fill all en
forcenittll I?Uferdmq•-. to he cnlllluiled
Ihroupll the Cly Aunrnry of 1lialm IIcach
It eleally will sil"Iflcally lists pl'ollihued
rourhul. Orders of the City Real Agency
are enflim'd "hy ohlailtinlr court orders."
Dur prrcess, therefore, is ;murcd lemons
charged with violaliug the ordin:mce or re-
fusing In follow ;in order of the Agency.
It would be difficult to draft more satisfac.
tory slandaids for enforcement.
I am convinced the ordinance is slid.
The judgment of the Circuit Court of Dade
County should Lc reversed.
When spiraling cosls and invlffirient
housing arc localized, rent control is prop-
erly a municipal matter. Whether we agree
with the policy of rent coulrol is imm:ucri.
al; whether a Imunicipality will zdnpl :1
rent control ordinance should tie left to the
disrictiou of the local city government.
Where not supersede,] by other legislation,
municipal nrdinancrs establishing rent con.
trol politics must he upheld under Article
VIII, Section 2(h) of the Florida Conslim.
tion; they can lie struck down only if it is
shown they violate sonic other commotion.
al provision. The ordinance in this case
docs not.
lfond Validation proceeding. The Cir.
suit Court for Icon County, 1V. May Walk-
er, J.• validalcd expressway bonds and ap-
peal was take[). The Supreme Court, Boyd,
J., held that Wpartmew of Bond Finance
was nal required to comply with notice re-
quirement of expressway authority law in
issuing expressw:lc bonds pledgiug general
rrcdu of state; it wan sufficicnl that De.
Par(urcnl hod conlplwd wills nolico require-
nlct ll-. of slatutc gorerliug validation of
bonds.
Affirmed.
1)cklc, J., dissented.
I. Stales 0-150
Dep:utment of Iloud Financc was not
required to comply with notice require-
ments of expressw• q authority law iu is.
suing expressway bonds pledging general
credit of slate; it was sufficient that De-
partment had complied with notice require•
menus of statute governing validating of
bonds. F.S.A. §§ 75.06, 348.012 el seq.,
348.54; F.S.A.Cousl. art. 12, § 9(c) (5).
2. States G147
Exprcisw'ay aulhority law is inapplic•
attic to issuance of a state Iwud pledging the
full faith and credit of the state. F.S.A.
§§ 75.116, 348.012 ct sell., 348.54; F.S.A.
Coust. art. 12, § 9(c) (5).
David A. Maury, Tampa, for appellant.
Arnold I.. Greenfield and Robert F. Niru,
Tallahassee, for appellee.
I
I ,
890 Ilei. 310 ATLANTIO REPORTER, 2d SERIEB
Clore 9ABUL and Frances Seoul,
his wife, Plaintiffs,
V.
William LIPSCOMB at al., Defendants.
8uperlor Court of Wdnwnn•,
New Ctetle.
July 0, 107:1.
landlord and his wife LnoiKht wit
against tenants and ell seeking eviction of
the tenants and rccoerry of rent, held by
the city pursuant to rcm-withholding ordr
nance. The Superior Court, Walsh, J., held
that (I) failure of the 1rn:nns to perform
their covenant to maintain the property did
not deprive them of ordinance -conferred
protection against eviction, 121 landlord
was not entitled to rely on the terms of
lease pertaining to termination of it in con-
travention of the clear intent of ordinance,
and (J) the rent -withholding ordinance is
not unconstitutional either out theory that
the standard for its application, namely,
.1constn¢tive eviction," is so vague and in-
definite as to amount to a denial of due
process, or on theory that, because it docs
not provide that the rents paid to the city
are to be used to repair the property, it
bears no real or substantial relation to the
attainment of the objective of safe and
sanitary rental housing.
Order in accordance with opinion.
I. Deposits In Court C=I
Alleged failure of tenants to perform
their covenant to maintain the property did
not deprive them of the protection against
eviction conferred by rent -withholding or-
dinance.
2. Landlord and Tenant 0=152(3)
Whatever were the rights and obliga.
tions between landlords and tenants, inter
ecse, laudlurdr Could nut shift to frtl:on.
file duty 'I'll -used on landlords by the boo.
mg codr; while the landlords might Ire,
an independrut cause of action against the
tenants for breach of lease covenant t.,
maintain the premises or for waste, III,
landlords were nevertheless responsible for
correcting ordinance violations.
3. Deposits In Court C-9
Only instance in which a tenant is
stripped of the protection of housing code,
pruluhit mLq the bringing of any action t„
dispoascss during the pendency of rent.
withholding proceedings, is where the tch.
ant fails to pay rent to the city as required
by the rode.
4. Deposits In Court e.�9
Under city housing code, when rent is
escrowed and violations found by city
inspection, landlord's eviction and/or ter.
urination rights under the lease are tempo.
rarily suspended.
5. Deposits In Court C=9
Landlord is not entitled to rely on the
terms of (vase pertaining to termination
thereof in contravention of the clear intent
of rent -withholding ordinance.
0. Constitutional Law 6=279(4)
Rent -withholding ordinance's provision
that a violation, to be the subject of a no-
tice to the landlord, must be "such as to
constructively evict the tenant" was not sit
vague and indefinite in the context of the
entire ordinance as to amount to a denial
of due process.
7, Deposits In Court Pa9
Rent -withholding ordinance was not
unconstitutional by reason of the fact that
it did not provide that the rents pail to ill--
city
hecity were to be used to repair the properly.
St...1 In lnl.• •.
-rd, by Ib, I:..
Ord, nu;:Iu
cline ag.fonl I'.
a%c CIACn•n.l •.
for u.mr.
s respon"Me r.•
ions.
Eich a mn.un :.
of hon,iug
of any action r.
ndens'y Of r••1
,s where the I.-.
e city as requ,trd
SABUL v.
LIPSCOMB Del. 891
1'1111 n•. I•I.xn
pr r.3111 .\':d "I
u Ihr house. An inspection
�?ulliv:l.
tcphen
flows
the (,fly Department
Itncberg, \1'dnuugUm, inr pl:inti((,.
Ly' reprr,entanve, 11f
In,pccu11n, revealed that
David 'f. Sump, (, uunuoily Lrg:d Ail
of (.irctur and
v,.,laUuns &d. in last, exl,t and a "Viola -
Society, Inc, \\'dn,iogun,, for defendant,
lien Notice" ars sent to plaintiffs' local
I.ipscoml.
ageul, If. 11. f(osin, oil Nocenl wr 23, 19711.
Frederick IAhcrgou, A,st. Cry >111.,
I.
Thr•r week, later, the City notified It. If.
werep as to
\Vihniogton, for de L'nlhnnt Pity of \\'d-
\\'d -constructively
construusin c , l
rvie'tt
tcnarttswhocould,
mingtnn.
from that dolt" forward, withhold rent and
the same to the City. Beginning on
OPINION
pay
December 22, 1970, and up to the present
time, tenants have paid their biweekly
WALSII. Judge,
rents to the City. .\hhough advised of the
' I I' ,dlord neither appealed
plaintiffs, Clcrc Sebul :11,11 Frances Sx-
bnl, his wife, the owner, 11f a n"Meuse al
.118 South Claymont Street, have brought
this action for ejectment 314:111"t (jet. Oil.ants, Willimn Lipsulull and Marlen, I'll"
comb, (tenants) and the pity of \\'f using.
ton (City), ,irking the eviction of ICnallh
and recovery of tenant,' Ifni, now III -1-1 by
the City pur,wult Ina rent %uhholding (Jr.
dinancv. Tenznf,' dnn
efe•c I, prerned on
the City l leasing Pude which bars ;uly ;%I' -
tun, to dispose„ teuautt, during the pen
dere) n( a r,rt •.ci:!:hu!dn,g pron'cl hoe.
Landlord eontrnds they are entitled to ter-
minate dcfcndanli truancy by the exprc,s
terms of the lease agreement, notwith-
standing thr Ordinance. '1'0 the extent that
the ordinance ban the eviction proceeding.
landlord attacks it as an arbitrary cscrc6c
of the police power and moves for summa-
ry judgment in their favor.
Tenants occupy the premises under a
lease dated December l., 1966. The initial
term of the lease extended for one year
from January 6, 1907 but was to be auto-
matically renewed for additional terms of
one year unless either party gave nmcty'
days' notice of non -renewal. Landlord re-
served the right to terminate the lease
upon sixty days' notice in the event the
property was sold. The (case further pro.
vided that tenants assumed responsibility
for keeping the property in good repair.
Sometime in 1970, tenants complained to
the City that certain Housing Code viola-
right to appc.l , .0
the order our made the repairs.
Un \tat' 1;, 1971, landlord entered into
an agrerint... I for IIIc sale of the property.
Notice svgs given to truants on June
5.
11)71, to vac;ur tile premises by \uguot 6.
1071. \i, -hen tenants refused, landlord
brought thin ,till. In October landlord
gave truants written notice of non -renewal
rffecuve Jauu;,,y 6, 1072.
11,21 Landlord first contends that ten-
ant,, by ),tiling w property maintain the
premises IS n•quirt•d by the lease agree-
ment, are 1111, entitled to the protection of
the rent withholding ordinance. The Court
accepts landlord's argument that the lease
imposed upon the tenants the primary duty
at maintain the premises in good repair.
Grochow•ski v. Stewart, Del.Super., 169 A.
2d 14 (1961). Whether the repairs or.
dered by the City were of the type or ex-
tent contemplated by the parties cannot be
decided on this record and may well be a
factual issue at trial. For present purposes
it is a matter Of little moment. The ordi.
nance discloses the clear intendment to
look to the owner or operator of the prop•
crty as primarily accountable to the Cit'
for maintenance. \V fever the rights and
enante,
obligation between Ian o�r��t t�^!q•+
tena_UMro m'd,}kfn
fa"1 I e m ord may have
VMWN@Npplht cause of action against the
I �.
I `.
0 10
892 Del. 310 ATLANTIO REPORTER, 2d SERIES
tenants for breach of the covenant to
maintain the premises or for waste, the
landlord is nevertheless responsible for
correcting violations. Plaintiffs apparently
registered the name of their agent, II. II.
Rosin, in respnnsr to the n•quirement of
the (lousing Code I§ .11-I0t that the name
and address of the person rcspun Wdc fur
correction of housing violations be regis-
tered with the City. Wholter the landlord
would be liable if the name of the truant
had been registered with the City as the
person re>ponsible is a different question,
one not requiring derision in this case.
(3-51 Sections 31-38.1 and 34 --vi of the
(lousing Code prululot the (,ringing of :any
actiRg.
e only instance in which a tenant is
stripped of the prntcclinn of the Ilousiov
Code is where the tenant fads to pay rent
to the City as required by the I ode.
When Al �I{a�t , cpwgd and vioJaUonj
#)nt}fN�1fy fl(+ rllnn,'(1A'Ina.
n e ail v, Ka� 414,a. 3 72
A.2d SIH), 111 A.L.R.3d 910 (1971), it was
held that the statutory provision that
" (N]o tenant shall be evicted for any rea-
son whatsoever while rent is deposited ut
escrow" barred a landlord's action to eject
tenants. The Pennsylvania statute operat-
ed to extend the tenancy during the Contin.
uance of rent withholding, but did not re-
new the lease for an additional term.
While the Wilmington ordinance is not
identical, §§ 34-38.1 and 34-10, read to-
gether, disclose the same legislative
scheme: to freeze the landlord and tenant
in their relationship so long as the rent
withholding mechanism is in effect. To
hold otherwise and permit landlords to ter.
minate the tenancy in accordance with
lease provisions would frustrate the pur-
pose of the rent withholding ordinance.
Thus a tenancy month-to-month or, at will,
would render the ordinance nugatory were
the natural termination provision lease u,
pre%ad. It is pertinent to note that th,
(lousing Code was in effect at the time the
lease was executed.
Landlord's constitutional attack urg,,
thm the ordinance violates the due proses..
clause of the Fourteenth Amendment u,
the United States Constitution in two ro
,pests: (1) it does not require a showinu
of danger to health and safety or unfiuics,
for human habitation: and (2) because tit,
ordinance dna not provide that the rent.,
paid to the City may he used to repair the
property, the ordinance bears no real or
substantial relation to the attainment of the
objective of safe and sanitary rental hous.
ng.
(6) As to the first constitutional
ground, g§ 31-41 through 31-58 of the
I lou,niV Cndc
sa 10 11 stiuicct
..con
i 1{
is at least as capable
o efinition as the standard urged by
plaintiff, "unfit for human habitation'.
Compare DePaul v. Kauffman, supra.
"Constructive eviction" is a term adopted
by the City to denote a condition of the
property which deprives the tenant of the
beneficial enjoyment of the property which
does not necessarily, but may render the
premises unfit for human habitation. Nor
does that term, as used in the ordinance,
require abandonment of the property. 111
Am.Jur.2d 314, Landlord and Tenant § 3111.
[7] landlord's second constitutional a1 -
lack is also without merit. The ordinance
II OII It d.r 1.,
to mm• lilt a.
•H .al the lout ..'
nal attack tile.,
s the dor pn...,
I Anlcnihmot t .
union ill Iw„ le
cquire A sbou l••;
lfcty or unhn,,
d (2) hecmt,v p.,
de that the r• r. ,
Ised to repair it,,
hears it,, rc'..l.,r
attainnu'ut of Il.r
itary rental h,nl.
GORDY v. PREFORM Bull,DINO COMPONENTS, INC. Del. 893
Vol MKLt
deprvo the 1 '>j4
�ahl`y{�'.1�,�,y•,".��
Ralph E. GORDY at ■L, Plaintiffs,
cce�'i1Y'�11 � I r.
pai PREFORM BUILDING COMPONENTS,
of INC., a corporation of the Slate of
d Noosing Codr g d•L-39. Rent Delaware, Defendant.
withholding is not uncommoll as a nu':ms
of coercing o\Vners or operators of remal 4owrlor Coin of Dt'lllw'ltre,
New ('tilde.
properties to maintain safe and s:mitsry.
housing. Sri: 25 Dc1.C. " y9111-51hlb Aub. 13. 1073.
(Tenants Neceivershlp Act); .15 Pa.5tats.
§ 17(X)-1; N. Y. Real Property Actions
and proceedings law 9 7Go, \IcKinn,•y's
Consol.f.aws, c. %I; N.JS.A. 1:\:12-45 rt
self. l:nlike oth,rr •latincs, 111011 yl.
The tenant has raised other objections to
the grant of summary judgment including
the presumption created by S .34-7.1 of the
fiouning Code that an eviction proceeding
initiated within nillrty day, of rrnt with
holding is retaliatory. Since the ordinance
raises a presumption 41111y, the resolution of
motive is hest left to the vier of fact. In
v'ew of the rejection of the motion for
summary judgment un other grounds it is
unnecessary to deal with motive at this
juncture.
To summarize: 'rhe Wilmington Rent
Withholding Ordinance is not unconstitu-
tional on the grounds advanced by land-
lord. Landlord is not entitled to rely upon
the terms of the lease pertaining to termi-
nation of the lease in contravention of the
clear intent of the ordinance. The failure
of tenants to perform their covenant to
maintain the property does not deprive the
tenants of the ordinance -conferred protec-
tion against eviction. Accordingly, land-
lord's motion for summary judgment is de-
nted.
It is so ordered.
Action of scire facias stir mortgage to
foreclose ntnngage wherein defendant
sought til a%.crt cmunerelaim arising out
of transaction tither than mortgage trans-
action. The Superior Cant, Ta)lur, J.,
b. -Id that such a c...nucrclaim is not allow-
able in at action of scire facias and that
the pleadings were pruper where they con-
formed with official rules despite depar.
tures from statutory language.
Summary judgment for plaintiffs.
I. Sclre Faclu C---1
Writ of scirc facias is used in connec-
tion with proceedings founded upon a mat-
ter of record, such as a judgment or re-
cognizance or upon a mortgage or me-
chanic's lien.
2. Egully 0-190
Allegation in avoidance must relate to
subject matter of complaint.
3. mortgages 0a388
Permissive counterclaim, which did not
arise out of mortgage transaction, was not
allowance in action of scire facias sur
mortgage to foreclose mortgage. Superior
Court Rules, Civil rules 13, 13(b), Del -C.
Ann.; 25 Del.C. J 2712; 10 Del.C. H
51161-5067.
4, Mortgages 6388
Pleadings in action of scire facias sur
mortpge, including writ and complaint
complying with official forms, satisfied
I Vol. SG
I oi':i hunrm
30, 31 (N.Y,
1, 1057, of 18,
noted, 39
' 11hmi,•ilr.J Ilmne )(1111 !'ower: impart (m 11rivate Legal lielnlfonships
I
molt., ;ln��, bro..,!I>' d"lined, is Ill,• pmecr of lural self-govern-
cunai:::.: •:,�:; as both a Wzolt of power to municipalities
and uL :, r•l,rlcli„n on : hr Power of Ill: lI ;!uJilture.= Illosl sigtuficanlle
hone n.;.. h;Is nu nut :Lc grent rf aarthority to municipalities to ex-
crcis• : , rtunenl;d lnnrvl' without
1 With ti. Icr:q!nitinn 11 Gu! fncrc:cged nrcol fuclnudlahilitylof rill -
palito , o, ;•uvern Il,,:nl,s.,laes and rr;!ulat0 local affairs,' there has
been - o "% ina•'m:.- In the numh::l' ul' horn0 rule slates in the last
half-Ln:.'uI,•.'' Cou:,nr.olly there
i:nproa•,. ;,I;,I hs., Lren numerous attempts to
I"tic, I !,„IIIc rule gr:Illts.'' Ouc area of uncertainty and
extnlI'I-:nnl cnni(a•ru. ,�.1.cher the hUale 11110 power extends or should
extend r„ lh•
I c•nac r"..r.1 rLnrivate 1•nvr by h
_ u_I r in lurch , til h rule muntetpalities
1111111911, priva!v I:nv is the late governing •ivil relalionshios s
includin:! x+::h field: .r: e.,
nlracl, tort, a Ilro crt law. For the
poses of IL• c c•omn_•.LIi, mmnici alit ' is co Pur-
, priv:rt.• I;: ::hen aII on u:I c t6idCi o,have enacted
laluln: ,r. A si mi I nilly affects private 0ga1 m--
iliciaol'I'u-thou
Sh mu -'
iti; e..I. • ;I„ o --1-�L �xa_rc]so such Power{° the increas-
lit dJlc1' m�nds on_I__A—9Mrp- jN—
, 'Nob•. '': •,r:p:! 1111•.,,. i. -, r..-.. ..- _-—___-�_�_�-
(]9G4 in /Vora; !1111111 Pile 3.40, 49 IOWA L, Rev, al 82f, 827
1. '• nib: La• nl;+, .. ., da•lined os 1;1V uPplication of the tederprin-
t tiple to I. ;I. I' local "I"li••o .hip, See IL Atc14nIN, Tne LAW AND 1119 PRAMCO
or 3lu:, , .. ,. !! CIE Ile,.• Ina
110 (1910).
r Sarniao-",, '1'40 Limit+ vj n; wdcilral Pouur Uedrr Aume Rule: A Role for the
Collett, ; .! s. L. (18), Rc,, ;::I. G:i-' (19L'4). See I C, AxTiMa, MUNICIPAL Co9PonA-
°Sec StuL.
. TION Lac: ;I,V7 (14n L,w, supra nn:.• 2, al 558.
i'See C:nd:r.:di-Rham, !.i I!• i,•11"d'Ionic Rolr hl Ilse Unitcd Slater, 10 WM, &
MARY L. P.i :.:9:9, 270-72 i19nv). See 0enrrallp S:mdalow, supra note 2,
i See \',nilan,iinl;ham, : upra -ole 4, at 277.
'Sec A>It's', piuxu.rr,.L P.":cnctnnoN, IltOurL CONSTITUTIONAL PROVISIONS r'Oa
Mmaar.u. II•ao� MULE (1 T:); ;NATIONAL MUNICIPAL LGDUE, f%loDm STATE ONS M-
TvnoN (rih ,••'. rev. IOGR:,
' Prlv:•I• 1 ...: uy� haan dr,ir "'1 a
�ItaiFl I s " ..:III Ihal mrl 0/ the Inw which is ad
-
1 ._n citir I,:.,,,! 6lizen, or��--•—,-
-,1, 11:1- n,.. :md t cC, c,.- c mn whomlhu_—oLl�nlion FIs_ Iucld person
�.whotR
h,divl lly i. ..LnrUL. LA•v %h.,1 RI.NAnw 135!) (411, ed, rev. ]91,8 '-'W-�
1;11101— al�(y j.., .•,,,,•uch f. :.1 : ) Prlvalc low
''y�mcn•i' ' ':m4aet tort, properly, agency, co o upon
•�(Il—I 9 llomr /tu a V t r- ea Wre Problem, 12
'.See Sa:;.;;, :,• tlJl,';,
7 �,, supra 11111 ,t, at G74,
°F.RLccrl •.,.:a & T. Snxuu.•,T GOVERNMENT IN UIIaAN Moa 314 (1970).
631
V
632
•
IOWA LAW REVIEW
tool 56
may force municipalitit:s In reconsider the need for and feasibility of
such action." Consideration of when, why, and to what extent nnutici-
palities are and should be alhnyed to enact private late as well as the
roles of the courts and in reguiating this power, is, there-
fore, necessary to understand more clearly the problems related to
such enactment.
n ;e cen_ �_ertlly accgplcd that home rule its do not include the
power to enact "purely" private aw." The soc-ial arlec000mlc con.
si crations of unlormi yf-- ceC r ainnty, and predictability in private leg;,l
relationships support this principle.'-' For example, the effect of a dif-
ferent law of contracts or torts in each city woVld obviously be
chaotic. The question of private law enactment by municipalities.
however, is complicated by several factors. Public and private law
are not always clearly distinguishable." For example, by enacting
housing codes in the performance of its guverrunentaj function, a mu-
nicipality may indirectly affect private legal relations ltips Also. ' . t is
often difficult to ascertain which matters are of statep•;,7„ �........... ..
local regulation_ phis dilticulty is due primarily to the complexity n[
the factors that must be considered in making this determination, such
as the necessity for uniformity and the effect of local regulation on the
outside community. Although it is debatable whether this statewide -
local dichotomy is or should be the standard governing the distribution
of state and municipal powers,10 most courts have not considered home
rule powers to include the power to legislate on matters of statewide
concern." The lack of uniformity in home rule provisions,1° and
10 Cf. Vanlandingbam, supra nate 4, at 314. See abo Note, Municipal Nome
Rule in Iowa: Bowe File 380, 49 love L. Rrv. 82G (19G4),
II See E. FAEUND, LmMLAME REGULATION, § 7 (1932); S. SATO & A. VAN AISrrNr,
Seen AND LOCAL GOVER%mrNT LAW 248 (1970). Cf. Bishop v City of San Jose,
1 Cal. 3d 56, 62, 460 P.2d 137, 110, 81 Cal. Rptr. 4G5, 4G8 (1969). Kelly v. City of
Fort Collins 1G3CDIo_52Dc 52=-2�,y'B P.2y1 ]j�,5 79G•Bj�',�7 . —
_trSee SATO & VAN Aures[, supra note -11, at 248; Comment, The Power of
"Set Comment, supra nota 12, at 153,
I'See SATO & VAN AmryNz, supra nota 11, at 248; Sandnlow, supra note 2, at
674,
Ir
Ptd
(1962); Van Gilder v. City of Madison, 222 Wis. 58, 67, 267 N.{p 25. '28(1936)..
Is See Dyson, supra note 7, at 3G9; Schwabacher, The Seamless Web, 44 N.D.L.
Rrv. 370,371 (1D68).
m This can be attributed primarily to the fact that the Brant of home rule
powers is usually limited to the area of local affairs by either the statutory it
constitutional home rule provision. See, C.P., COV'. CONST. art. 20 4 G. KAN. Cass'
art. 12, ¢ 5(b); Onto CoNsr, an. XVIII § 3. Several courts have stated t),at in the
absence of state legislation, municipalities can exercise power on subjects of bnlh
municipal and slate concern. See City of Tucson v. Tucson Su+uhinc Cihnaw
Club, G4 Ariz. 1, 6, 1G4112d 598, 601 (1045); Consumers Coal Co, y City of Lincoln,
100 Neb. 51, 58-59, 109 N.W. 643, G46 (1922),
Il Compare SfAss. Comm art. 89 with IOWA CONST. Arl. IR $ 40
mens :.
tribuu.
¢emir:
Jame
V. B:
super
:IS
Pali
ex r,
MICH
•' Se
r Jtln
nBre
%lo
:( C.
Ap;
•i0
1 IVul
0 0
coalAll:Nr _ G33
,.yucnQy in court db•cisiuns," has also ntadr difficult the d(,velnp-
..,rnl of a sound be 113 by cut rtsnanrtl s h re
•un)nshn(alllirs h� t It frj on—
a of th
aterahle unccrlamty m the Bec•ausc of 1h.:ce complic:diotts an
ponse
n�cnitle ,IOf Priv tlaw W II help clarify the existenceuof and �linulauons
un this municipal power.
vate law is generally considered wtr olf ce
Although the arca of pri
of statewide concern and thus not within the scope of p
municrule 'ipalit'ies has belenyconsidered valid to e vnautmerlt Of ari uls situatie law ons•.ott+c.�1] merle
rases, those ordinan c y,jlj v;1is li•lv_c involgcd nnly�p indirect an
u en un mended im act on rivatc _let'al�rcla`W11 htlandiNg-T such
dii•ec a cl.lnc
pure ' rivatc1aw..'- 1�'
ordinances often hold important consequences fur the Ictal i olaliare
ships between private parties.=: i\'safet To
lei al o teen 5— OsmgtiaRugaer
robably the most co Rtvp�•' Althoug
egrce of caret n state ]aw," suc}t reglilations are fres{uend= �d
nCwnpare Old Colony Gardens, Inc. v. City of Slandord, 147 Conn. 60, 156
A.2d 515 (1959) with Warren v. City of philadelphu, 382 Pa. 3bo, 115 A.2d 218
(1955). rd , 3.36. .-rhe deuce and amount of expansion
n See 1 ANtrrau, supra note 2, 4
of municipal power varies grea(ly within the home rule stales, depending upon
tu
the phraseology of the constitional amendment, the breadth of Icgislative home
rvk: laws, and judicial understandim; of the purpose of the constitutional umend-
menl and appreciation of the objectives:' Id. at 6 3111,
rr See Marshal House, Inc, v, Rent Review & Grievance Bd.. 2G0 N.E.2d 200, 204
(Mass, 1970); SATO & VAN A'sivus, supra note 7, at 248. Whether this is at-
uibutnble to a lack of understanding of the problem or a belief that there is no
genuine issue is unclear.
:2s" e.0•, i V'.1 v Mayfield. 365 M_o. 238 41 S1V2d 9 (1955);
James v. Young, 77 N.D. 451, 43 N.W.2d 692 (1950); Dallas Ry. & Terminal Co.
v. Bankston, 33 S.W2d 500 (Texas C:Q•A. note 121930). at See penerallp Sandalow,
supra note 2, at 674-79; Comment- H)
nSer, e.0•, State f1 rel Wells v Mayfield 3G5 Mo 238 281 S W2d 9 (1955 •
Patton v, Peoreylvanln R.R. Co., 135 Oluo St. 159, 24 N.E2d 597 (1939), State
ex rel. McBride v. Deckebach, 117 Ohio St. 227, 157 N.E. 756 (1927). Sae also
M1c1jMMAN & SANDuow, supra note 9, at 314.
!,See 1,IICIIMMAN & SANDALOW, "pro note 9, at 314.examples VigOf.local safety Iregulations
d watch ordinances,
sustained in the following casco, g
ood affecting private legal relation. LcC1' veClc eland State
Fly. Co', hdlg Ohio Stn 1G2, 128
Mo. 375, 244 S.W. 929 (1922);
N.E. 73 (1920); Dallas Ry. & Terminal Co. v. Bankston, 33 S.W.2d 500 (Texas Civ.
App. 1930).which have dealt directly
"I In at least two cases, municipal safely regulations,
Willi the private law relationship by Imposing a standard or care without Pre-
scribing a penal sanction for violations, have been held valid, See Slate ex rel.
Vogt V. Reynolds, 295 :do. 375, 393, 244 S.W. 929, 934 (1922); Leis v. Cleveland
Ry. Co., 101 Ohio St. 162, 171-72, 128 N.E. 73, 76 (1920). In both cases the courts
failed to specifically consider whether home rule munfcipalltics bad the power
to enact private law.
Ix
0
r�
U
6S4 IOWA LAW REVIEW
[Vol. 5G
by cr,nrLs to define the stand;:rd or care in private tort actions =1-
law c:,tabhah,.o file civil , ,osequences of vtol
tions;,lions of safety re�ula.
" Ycl nnnuk•it„d !-110yordinanacs may s4mifirmtly iuflucnre
the rights of 1114• I"o-ues Involved '
n olved, since departure from th.•
stand,ird of care prt scrik.11 by the ordinance may be asserted as
negligcuce per s,%
Generafil nrdm_me4:s such as munici�tl s:dety_rrguL•dions.ars c,n.
vt ere va iiiunI. •ss Ivy ;Comp( It, eco ntt nen• ctva G::b�laics;F•ar
examp e, ordinlmces rtxtiunnq cssnrs o�nrnrncretal vehicles to ga•c
security that lessees will respond in damages for the lessee's torts arc
consistent will, this liniilation and have, therefore, been held valid.
Such ordinnnres are ef:nSlkhlrCIJ a valid exercise` of the police power to
provide side streets since they are nut directed to making the lesser
liable for the lessees torts. Rather those ordinances ;ire considered to
be directed towards imlucmq the lessor to refram from Ica::ing velli,!,;
to irresponsible and pntenicdly negligent persons. Ordinances afire:.
ip1; priv:4le legal relanore,hn4s. other than nvrniein,l
as they do nol_coi[ii.t Willi state laws,"
"See "lich,hrun & S:mdaluw, supra note 9, at 314. Seo, ep Bungs v. Rcifrr.
174 N.W2d 372, 374 flown 1974); Wilson v. Long, 221 Iowa G48. 671, 266 N.W. 49:,
484 : Patton v, Peuusyhvania lilt. CO., 130 Ohio Sl. 159, 166, 24 N,E.2d 597,
600 (1939).
rr Sec F11Mo, supra note 11, W p 7,
"See SAO & Van Alslvnv. suprn note 11, at 251. See, c.9., Nilson v. Long, 221
Iowa GGA, G71, 266 N.W. 182, 48.1 (1936) (viulmion of a statute or ordinance fixing
s standard of care ronstitutes negligence per se); State ex rel. Wells v, Alayfie14.
365 Alo. 238, 246, 281 S.R!2d 9, 13 (1955) (in which violation of an ordinance
reiMating private dumps was evidi nee of negligence per se in a civil action for
personal injuries); Patton v. Pennsylvania R.R. Co., 136 Ohio St. 159, 166, 21
N.E.2J 5!17, 600 (1939) (where violation of an ordinance regulating the speed of
trains within the city limits constituted negligence per se).
"See Sondalow, supra note 2, at 675. Leis v. Cleveland Ry. Co„ lot Ohio St.
162, 128 N.E. 73 (1920), is a rare exception. There the ordinance created a
liability where none had existed under common law. Alost courts, however, bare
considered the creation of civil liabilities to be a matter of statewide convent due
to the necessity for uniformily and predictability In private legal relationships
as Sce Hodge Drive -It -Yourself Co. v. City of Cincinnati, 123 Ohio SL N,
295-96, 175 N.E. 106, 199-200 (1931); Covey Drive Yourself & Garage v. City of
Portland, 157 Ore. 117, 125, 70 RUI 5GG, 569-70 (1937). Contra, Genum v. City e!
Iloustou, 10 S.W.2d 772,77f. (Tex. Civ. App. 1928). But ver City of Corpus Ch.4
v, Texas D4 iverless Co., 144 Tex. 288, 190 S,W.2d 484 (1945), Similar ordlnram�
requiring taxicab owners to post bonds or Insurance policies Indemnifying agau,•t
personal injuries for which such owners ore legally liable, are also common. .�•'
Jaynes v. Young, 77 N.D. 451, 43 N.W,2d 692 (1950); Slate ex rel. MclriJe
Deckebach, 117 Ohio SL 217, 157 N.E. 758 (1927).
04 Sec Borum v. Graham, 4 Cal. App. 2J 331 40 P.2d Ulf (1935) (where a CIO`*
walk ordinance gave pk(deslriims the right-of-way, although the leveilature, will,',
occupied tl,c field of traffic regulation, had remained silent on the subject): Al.n ':
& City Co ncll o[ 11alr'more v S!tnick 254 Ald 303 255 A 21 371 (1900) (whrtr
MR
I. n;hct •
..dere,) t
when 'h,
•
From
private I
the muni
lllch Ind:
Judicial 2
of these k
of pnvat•
dinances
ordmeine,
private b
ontv;vital4
Aro) :Ili
rt -;tions;
vaUnled
cenccrn t
ordinanct
been hei6
of statow.
[ V,d. fr:
r'� til b
inllm•n, �•
from it;
tlerteu a.
are c„n-
es. ' }'or
!s W I;,ee
torts are
Id valid.
power to
the lessor
sidered it,
,g Vehicles
ces affect.
zgulatinns,
finalregu-
ty, as lung
Wes which
Y. 4N2,
h tom: 2d 597,
conlmf¢N•r
635
rill
,:d1•rvd th,iltubjSta e matb`r "f Itha lu�Jurmva II,IIb•.�I •,'ul JI 11.1lurirts sc`m,
a•he❑ Ihcn• was a sr;ndle;m{ u,q,act un prly:de 1•..;:,I Illeuinipae. �
f••rnm these cases It cam I observed that, $WM rally, Ihr in'pacl on
private rclu C,uns)uls Is :m iudin'cl rrr.0 exercise u[
It ��[ a valid
signi
thesudcalice of
mmdi'ccllPolice consegnuuct+ (,rtprivatet� ,;dltrn�);,liultt.Ihlps has meitcd
judicial and Icg'slaln•e scrutiny. 'I"ncrc(„r,., in (:Iormrmfin1R..Ihrr validity
11115 di1c_.v RCClS Or 5i1C�t U�
o[ these ort °nl .d' .ncot r hil5_u'.cjfn tsrl d tl1r• ljOtrntia) disruptwn
, ,,.ftv Where these
aw°l. au! courts IMN. (Weintiv_ev .... - . -
o d� inan�.11avr Ur_I:n wlid
d unifol70itX./0 be.
pfivate le al_Ldaliuflsllips.and illt:�sscl Il of is `i�'-rn,-�teLs_ .
the nett ulatm ` or
affecting private legal
out}vcI cd y_____-: �ur_1SLGt1 _faun
Not ,ITmunicipal ordinances reg 6
in -
relationships have Ucen held valid. Vit! courts have generally in-
cKntn plc
validated ips h ordinances either as le,.islating on matters of statevvl e
ws
coamuncu rc ulati_ng thcveunductth tof lparties tto .1 I labor dispute 14vc
�— r `_ talc and
been held invand as cunllW` nr withr;ta`e law+Itlori Ilelicn<�ensa matter --
of ..§1�tt1Y1dC_cunpern, __ ___.__
d,e court upheld a mw,i1 ipal urdin:_lnce. CALiblish)0f,, nunimum wage standards
stan4ar+i•i set by Jm stale Itg„I.,nr1,-1; rj. Kelly v. City of FL
CollinlO. 5211, 4": 1'&I 785 (1967) nn ".11th a municipal onlinanec
hi
Caunrn v. Cook, 245 Iowa 750, 61
restricting the sale of Lrcr to fewer hams than st.rc law permitted, Was Im
valid due to the necessities of local conditions);
N.W.2d 763 (P9.:)' 2 Cal. App. 3d 378, B2 Cul. llptr. 515 (190);
,r See Baron v. City of Los Angles,ed -
1,E M,Qud ides )t ICI Assort°wiJcrtmattet 4s Ic.83 3I wsv prevail Gover ) conllicing
charters or ordinances; 2 MCQUMLIx, s,Prn, at § 4.fi 1. See Bishop v. CiIY of San
Jose, 1 Cal. 3d 56, 4G0 P.2d 137, 81 Cal. Rptr. 465 0%. ), for California's interesting
APP"",,h in deciding which matters are of statewide concern and which are local
matters. •rt Cal. 2d 773, 1G7 P.2d 199 (1946) (improvement of
r, Se¢ Ra)sch V. nI ers, .. City y County of Denver
stmcts and collection of costs are municipal mall ordin ordinance prescribing right -of -
v, lCIS 95 C010, 582. 38 P.2d 895 (1931) (city
way at inter Clio, prcvuilcd ovrimurll n0tmalgerloft local concern).regulation of
traffic at street Inter sectiolts is P y
„Cf. Galvan v, Superior CL, 70 Cal. 2d s51, Br,G, 452 P.2d 930, 940, 78 Col. RPtr.
G42, 652 (190). 47 Gd. 2d 862, 857, 306 1, 2,1 780, 7'91 (1957). The
,'•See Wilson v. Bevillc, v;, from state m elate, For
definition of state or general laws often may rY
example, Ohio general laws do not Include ti,e common law. See Cumment, nPro
note 12, at 156.348 PM 951 (190) (state law pre-
,nCity of Golden v. Ford. 141 C00. 472, of palm Springs• 52 Cad, 2d 407,
rmpU•d municipal °ction)-I Stephenson v. City
em i -d unlICO (19.19) !ordinance prohibiUng closed shops conflicted with state
policy find the ntteJ for unsformltg in the arta, `Ino to the interrelated conditions
II I.N.
of 24.431 )(3d rev. usnebs life
• AsPATIUNS
to twhdhcr,mmucipaiit)estican regulat AL rnemployer§
t�
G36 IOWA LAW RRVIHIV [Vol. M
federal 1,•ttisl:ilion on the smbj,•rI. Similarly, where a municipality has
uttempled to imam: a m,w viwl liability" or transfer a liahility from
itself lu priv;d,• milividunls, . the action has generally betvr invalidated,
Thus, an attempt by a inuu,ci;,ality to shift liability for safe streets and
sidewalks from itself to nbultiug landowners was held invalid:° In
these cases whore the ordmmnr,•s alfec•iing private local mlalionshi s
were not upheld, -the rr,pecuve mm�icipaliues were attempting to
legislate on matters which the courts deemed to be of state-wide con.
corn, requiring uniformity, without ranking the requisite showing that
the necessities of the h-Mity juslified the effects on private legal re-
lationships and the outside community.
A municipality generally has no trouble showing the need for local
regulation of slrerts due to the interrelationship between adequate
street regul:tious and Iliv poc•ulianties of each community. A munici-
pality usually c•neounnut:s tp•eater difficulty, however, when it attempts
iu regulate private legal relationships more directly, such as by creat-
ing a new civil liability or by adding local variations to the law of
contracts.•^ The need for statewide uniformity and predictability in
private legal relationships with regard to such matters is so great that
it is extremely difficult for a municipality to overcome this with a
showing of sufficient necessity for local regulation. Due to the
hesitancy of municipalities to ennct ordinances regulating private legal
relationships, however, the courts have rarely found ordinances that
go beyond what the courts consider the permissible limits for munic-
ipal enactment of private law.
Oftentimes the courts in different status, faced with similar and even
identical home rule grants, have reached little unanimity as to the
power of municipnlilies to enact private law. Rent control ordinances
provide an excellent exams le of this disaereement amnnn ct.nn
ews
courts,
employee relntionships or union -nonemployee relationships in the absence of elate
or federal legislation, see Berke A Brunn, Local Right to {York Ordinances: A
New Problem In Labor and Local Law, 9 STAN. L. Rrv. 674 (1957).
"Young v. Mall Inv. Co., 172 Minn. 428, 215 N.W. 840 (1927). See 6 E.
McQmrs.m, MONICITAL COOraaATnoNa § 22.01 (3d. rev. ed. 1969),
is See Town of Antlers v. Denson, 247 F.2d 437, 43839 (10th Cir, 1937).
"See King v, J.E. Crosbie, Inc., 191 Okla. 525, 527, 131 Ptd 105, 106 (1942).
But see Marsh v. McLaughlin, 210 Ore. 61, 89, 309 P.2d 188, 190 (1957). See
pcnesally Furuno, supra note 11, at § 7.
See generally, Freund, supra note Il, at § 7.
s' See, e.g., Oid f'rlon � C,r I as_Ir_r_v. City of Stamford. 147 Conn. 60. 63. 15G
v, city of St. L uIs, 359 Mo. 439, 44S-46
0 0
ou l COAIAf F.NT 637
caessities of the particular locably and ronstruing the. monicilpaty-s
"Ii: ice luASer_:ru.�:.:.ave �t u n .:ie_Si urtl:nnnres." The
,avergcncc. of these views, therPfore, malar -_;41N Ifial n municipality's
p,nver to regulate or influence private h•:val relationships can vary
yrently from state to state depending, among other things, upon the
home rule r, t" and the judicial interpretation of that grant.
roma these cases several ohserv:,tions can be made regarding
judicial regulation of the power of home rule munic,palities to enact
private law. Where. there has been a clear, valid. Ierislative. grant of
._..--- —. ._. __.. _....._ ...............t ,.,..,,.,.
been no specific legislative grant, owever, t e courts have taken into
consideration several factors in regulating this power and determining
whether an ordinance is n valid and reasonable exercise of the munici-
pal police power. For example, irrespective of the difficulty in doing
so," they have continually relied upon dktinguishim; h0ween matters
of statewide concern and those of local concern." In doing this the
courts have balanced the need for statewide uniformity, consistencyr
cM1lJ& Another factor relied up,m by the courts involves judicial
ascertainment of whether lh,•re is ;,DY I-11111lict betw'cen apsylip:mee-
and sl• t ':wa�,r )tul�_ icics." municipal power Las lhrrcfurc depcnJet7
s•.gni at • u on attend determination of when tht•rc i:: a conlliut be-
tween an ordinance and a statute and when municipal action is pre-
empted
riempled by state action, both of which may vary with each jurisdiction.
Given this g:neral analytical framework used by the courts in regulat-
ing the po%vP.r of municipalities to enact private law, it becomes ob-
vious that the factual situations of each case nre of great importance,
since no very precise standards can be developed fur regulating mu-
nicipal power in this area. Case-by-case analysis and regulation may
create a degree of uncertainty as to the power of municipalities to
enact private law. Nevertheless, this process has the advantage of
encouraging municipal experimentation In the exercise of this power
to a greater extent than where legislative action strictly confines the
exercise of this power.
state
—
es: A
rqy
Ilet<bc
6 E.
(1957)
but in
f
"Ina
1942).
13SL
See
"Sr
City of Philaaell/hia, 389 POO, 380, 384, 115 A.2d 218, 221 (1955);—Cf.
Lor & City Council of Baltimore, 205 Md. 203, 210, 107 A,2d 89, 103
m,
ccwas invalid because it conflicted with Mate law
House, Inc. v. Rent Review & Grievance I1(1i200 N.E.2d 200
7 me NIe proVl5lon can oe m tnvanaaun
3, ]56 et See State ex rc . emig V. City of Milwaukee, 231 Ore. 473, 46), 373 Ptd 680,
.s not 6.84 (7962); 1 E. MCQoaux, .11OSIQPAL CORPORATIONS § 1.93 (3d ed. 1949).
Mum "This determination can best be made by a case-by-case analysis. See 1
npled A+r=u, rapra non: $ at y 3.36; 2 McQuu Ox, supra note 32, at § 4.85.
73-74 ee See Borarn v, Graham, 4 Cal. App. 241331. 338, 40 Ptd 8GG, 869 (1935); Mayor
INS), & City Council of Baltimore v. S)tn)ck, 254 Md. 303, 315, 255 A.2d 376, 381 (1989),
EA
I �
•
11
638 IOWA LAW Rb'V1EIv [Vol. SG
At present the :.I:d us of munit•ipal power to act in several important
areas re):rtintf to 111e r.• ;ulalion of private legal relationships is stlii
uncer(am mid ut n :.I:Itv of Ilex. Judicial treatment of ordinances in
Ihese arras may be h;l•hly n,livnti,e of the extent of file pou'or yr
home rule n1Lmicip,l1 IP to enact poral, law in the near future. Tl:r
Power of a nwnir•grdll t' In gnarl civil rights ordinances, for esumpl•.
presents a dllhcult t::wo when there has been no specific Iegislntit•,•
authorization or preemption by stale I.•i6slation.1r Civil riuhls ordm
slices 11
_ •n• . , .t:uhdth' d m .rver:d iu.utnces where. the muntc•ipalilt•
mad • itll�_..._---- -----
111uL'IUs715_ ,unlsh_ible as a_nislcmuanur without creating an}•�"
right of uc61n I: •ave, n priv;ac partici.'-The v3TH n o1 civ i n'g!i s '
ordinances laser IT time to mumctpn slice power constitutes a sig.
nificamt and broad interpretation of home rule powers by (hese
courts.''' Such judtcml "01011 is consistent with the home rule concept
in that it rvownues lite need for and ability of municipalities to work
toward the solution of a problem that varies with each community.
Although few cites have attempted la enact such ordinances;" the
receptiveness of courts to those which have been enacted is indicative
of the potentiality for more effective and active municipal action in this
field."'
4'A strong an;unu.ot may Lo marl, Ih,, the solutimi of a civil rights pmhlem
Is a municipal ije e, ,t iall, being a matter of local concern. focal ordinances are
likely to Le better suitril In the nerds of file city and more readily acre•pted. The
involvement of locd p, nple in solving their own problems also promotes the
development ur r1, ;pnm,ibte local government. see Note, firanicipal Civil Right,
Legislation.. Is file Purt'1•r Conferred by the Grant of llonle liulr?, 53 Aimx. L.
iG:v. 34'J, 315 1171;!1. Ser ernemll!r Nolo• P011,17 of a Municipal Corporation to
Enact a Cioil lii,llda fhrlrlancr, 4 WAPIIIIpPx LJ. 128 (1904),
4^ District of Columbia v, John R. Thompson Co., 316 U.S. 100, 116 (1953);
Manhall v. City of Kauses City, 335 SAV.2d 877, 883 (Mo. 1962). OutcJ. Nat¢c
v. Mfyflow^r 'lards, Inc, 11x1 Utah 517, 150 1!2d 773 (]744) (ordinance was
invalid because it allowc•J a civil remedy to damages).
'^CJ. Montgomery Citvens League V. Greenhalgh, 253 Md. 151, 158, 252 A.J
242, 245 (1069), where the court, broadly construing the general welfare clause
of the home rule provision, upheld a fair housing ordinance enacted by a home
rule county,
"Several Minnesota municipalities have enacted various forms of civil rights
ordinances relying, solely upon the general welfare provisions of their home role
charters. Thus far, no challenge has been made concerning the validity of these
ordinances. See Nod•, ALndclpal Civil Rights Legislation --is the Power Confcrr+d
by the Grant of Home Role?, 53 Marx. L. Rcv. 342, 350 (1908),
01 See, e. p., District of Columbia v, John R. Thompson Co„ 34G US. 100 1195.11;
Montgomery Citiu•ns League v. Gicenh:dr.h, 213 Std, 171, 252 A 2d 242 WI 11.
Marshall v. City of Kansas City, 355 S.W.2d 877 (Mo. 1902), Additionnlly, 'L.
enactment of municipal minimum wage and fair employment ordimna•s pt, • of
similar opportunities for munivipnl actinn. As to municipal minins.••,,
ordinances, 1,1•, Mayor G City Council of Ralumol, v, Sitnick, 251 M11, 393.:'••%
A2d 37G (1960); 7 MrrlurLLlx, supra nolo ;IG, at .§§ 24,431, 24.134. As to inuuiri).d
fair employment oidmancls, see Note, A1u,urtipal Fair E,llplopment Ordirwucrr
as a Valid Exercise of the Police Power, 39 Name DAmr LAw, 607 (1904).
—ter
t•-:
Ctie
v_ s
I, 252 A:1
''are elauu
09 a home
civil right,
home rah,
ty of these
Corrie red
loo (19:3):
242 (19G9);
(anally, the
ccs preseot
MUM wage
Id. 393,
'0 mtudcil'al
Ordinances
COMMENT 639
grll ore offectivoly
Thr onic
use of ptlaw
such�mdlliniamg rccnme, ist:mnthr r polos tialJarca
❑tunicipaI programs,
[,.r municipal action.'' J) •sun • clear tnuwcipal intervcnticn in v
II I t at•+nt n�laliulla ' 111et� 1t11=55`Of—�-- �—
1 nt i
S`�',di,s" may i p`JorrhnalnccstlProvidi�tr,l°(Itrt'rcntf V V)ld iv
.,,medics:_ '.. ., „rr,nsrs as romtire y mus-
ing Of houstn;; coue v,o, ... _
fw_ re cuur s, m sever., nraances, have indicated that they may
be r ccptiee to ordinances cnactcil_lll.fSs'Uun@c Wthis 1), For
['ur
l,a;;irt�sley,tvhr•rc a hmdL,rd ent,_lci into. a lease knovvin_; that viola -
d on file
tions of a congressionally authori2'd'housing clld odeexii+ttilo s
PryV en�Ff' r. T7 the 1 ••
K•�- syph - In sorties,, case a landlord was prohibited
owed -h
from evicting a tenant for reporting housing code violations R the
authorities 61 By stating that the landlord could evict for no reason nr
for an legal ru�sg1 }>ut nqt in retaliation for the reporting of housing.
c e violsTtions, the court in5{iCalCd its zecoCniliori of the neC�(of m2re
elCectfve remedto reduce housing code violations." Although
-See Note, Enforcement of Muvicfpal Ifoafs,p Code,, 78 11Aay. L. Rev. 801,
613-49 (1965)•
,l The hesitancy of tenants to risk filing complaints, he willingness of landlords
to P0Y fines a9 an alternative to improving the property, and the difficulty in
performing adequate inspections are some of the fnadequacics of public law
remedies. See MrcuMMAN h SANDALOW, supra note 9. at 315.
,,See Note, auprn note 52of 843-40.
ss Several states have enacted statutes with provisions of Ibis nature. Sae ILL.
Rev, STAT. ch. 80, § 71 (prohibition of retaliatory cviclion); N.Y. Mures. DwML.
LAw § 302-b (McKinney 194G) (provides for rent wilhholdimt for certain vio-
hlians). Sce 0 c Itrnl lVuh)mldmg For hli,mrsota: A Proposal, 55
at 11
Mass. L. firv. tl2 (]970). In
some .osmO, no tv sctlegislative power is cora cred
751, tGS, 252 A.2d Z03;—[4a lr�o°t• 237 A.2d 834 (D.C. Cf. App. 1968)7 Sounders
:1 Ser. to til a ca y Co.,
v, First Nat'l Really Corp., 245 A.2d 836 (D.C. Cf. Apt. 1968) (lease is void only
where the landlord knows of the violations before entering into the lease). It
has long been established that contracts entered into in violation of valid or-
dinances create no enforceable right of action, Sec Miller v. Ammom 145 U.S.
421 (1892). Since municipalities can enact boating codes under the police power,
,Ilwould,appcaLt6, h)cases entered into with knowledge of hous'utg. corkbv_ola-
unatWOuld be voids just ss when the housing codes are Promulgoled by_DWWte
as in the nhove_cases.
n Edwards v, Habib, 397 F.2d G87, 699 (D.C. Cir. 1968). There is no renson to
belive mdethose enactedcourtsby will
ydinance,differentiate
lonv. uscthe ordinance doesnstatute
not conflictwith
state law.
r1 Id. at 706.
LIM
G40 IOWA LA1v Review [Vol. 56
..
neither of ncc.se cas,s inenlved Municipal ordin;,noes, bei-stat,•s u•h. r.
tlil;.,ytsvur
.1 .4 nwnrupully'_f} 1il�lts•.sifrnc. level as the slate's power
a )nunicipaluy is a..... able Po
'
y' to case~ ordinances prnvidi
rent wlltli,ilTiiG owl proliihitinl;_ retahab,ry eciinns, subject is q�r
uiromdiil
••
m jif 1,i ini, runSish m fi ~talc law, and policy. ' It, r•o"_
mlwiate (Tic inti: L•; of the necessii,v far
municilialiiit. lliemsrlv�•e t,r
alleviate pour huusnrg c•undnious, rather than expecting illi state
'�
°:-
In
assume the entire burden, will it is hoped, result in the allowance
n('`
more extensive use of private Into rcmedles by hom,, e rule failipahtics
to efTectunlr umnic•tp:d
'•.
pn,giams aimed at this problem,
Municipal awareness in these arras, combined with the
r:
n''
present po.
sit of many courts, presents important opportunities for home rule
municipalities to find their atvn
-
sulutiuus lir problems that vary with
each community. With increased responsibility on municipalities In
solve their own problems,"" the need for more effective municipal
action in areas such as civil rights and better housing is
Al
great. Despite
a common misconception among many municipalities t hatcn_t�ri
"'
drug home rule Brants n,rr ..I have
•c
t broadly
grants of power t h I -n' ' I', Hn�, rule haithe�
ore meant a significant increase in rnunici��al ower over;•' and re_
sponsi flie.
for
-
t Inca Government in Deal a(firs. _TF Fesitancy of
municipalities to exercise ibis
power seems unjustified in light of the
severe problems fac•inr, cities that
can swoeltmrs only be effectively`
dealt with at the local level. Responsible mmlicipal action in area
ht::
such as civil rights and better housing, therefore, appears In he a
necessity. This is
d
nal to suggest that municipalities are or should be
empowered to enact private late un the same Irvel as the sial V. In-
pr,:n
stead municioalitic in Irl ssi • cn•isc their Owers con-
sr cnl with their home rule grantti even where im
'
_
v emenlation o
munlm ro rams and
d�—_p P g pnlic•ies ius i m1Tiv ,. tc nnvalc c a
zelationshi direct]
s or indirectly wi bout unnecessary disruption.
Lca!
eclat; cense ere t rc extent to which munmrpa r res ave gen er-
milted to enact private law in
r�r
the past, the role which the courts and
legislatures should play in regulating municipal
private law enactment
presents an additional problem. For example, in response to its recent
facie
6° blunt omer ,Citizens Lca c v. Greenhalgh, 253 h1d_151
(1969). A2 __ =. __.— i2�`t2 A.1d 242
ase
1•lts
Bias
oOSee Berger, Conflicts Between Zoning Ordteonces awl Restrictive Covenant:
A Problem In Land Use Policy, 43 Nus.
u•
it`
L. Rev. 449, 451-61 (1964), where it ;s
suggested that since we have entrusted land use central to cities,
state court as
a policy matter should, when necessary, give legal effect to ordinances which
conflict with covenants, in order to effectuate that
`•'
control, Similarly, It can Lc
argued that since municipalities have been given the power to try and solve local
problems, such as slums and housing,
,..;
poor they should be allowed re.•uonoblc
means to effectuate their programs aimed at these problems. /d.
or See Sandolow, supra note 2, at 603,
tile
or Sec 1 ANrnsu, supra note 2, at 0 3.10.
moil
41 Overaealous municipal action could result in a nitrate
legal relationships created b gigot
'r1P'
without significantly bgneflting the
ca tly benefiting
fi
Y general 1, at
muNcipsllty. See Sandalow, rupr,a note 2, al 720_21,
a'•u i
LIM
_.......
t v..I . ,
men per-
urts and
Inctincnt
is recent
W -PI zy1
;ovenonu:
here it is
courts as
ces which
it can be
solve local
!easonable
f private
.fiting the
0
0
COMMENT 641
h,nnc rule amendment," Iowa is presently in the process of drafting
.ubstantial revisions of its statutes concerning municipal corporations.
Those drafting the proposed let:islation art faced with the decision of
.tiiether to include specilic reivrence to the enachnent of private law
;.; home rule municipalities. The alternative facing them is to leave
;t largely to the courts to control municipal p,mver to this area by
applying and construing the constitutional provision and state statutes.
An examination of each alternative in light of past experience and
present needs will provide a basis for formulating a decision as to the
respective colts to be played by courts and legislatures in regulating
municipal enactment of private law.
In the past, most home rule states have considered regulation of
municipal enactment of private law to be primarily a judicial responsi-
bility."a The legislative rule has generally been Iintited to expressly
authorizing such municipal action in specific instances, preempting
local action by passing comprehensive sone legislation, and passing
statutes an statewide matters, thereby forcing ordinances to be con-
sistent therewith. An attempt was made to reduce the judicial role
when, in 1953, the American .'Junicipal Association (AMA) published
its Model Constitution Prnvisions for Municipal Home Rule."O This
draft included a provision"' enabling home rule cities to enact private
power." Since then, a small number of states have included such a
provision in either their constitutional home rule amendments" or
their statutory provisions"' relating to home rule powers. The value
and necessity of such a provision has received little consideration,
possibly due to the uncertainty of its meaning and function." Analysis
11 IOWA CoxsT. art. 111, 1 40.
1OThe imposition of only general limilatiotn on municipal power, such as the
local affairs and consistency with state laws limitations, is indicative of the
responsibility placed upon the courts to more precisely define the limits of
municipal power.
1e See Am MICAN MUNICIPAL AssocmnoN, supra note 6.
If Section 6 of this draft states that the gram of home rule power "does not
include the power to enact private or civil law governing civil relationships except
u an incident to an exercise of an independent municipal power ...." Astouax
Mo ncern AssoetArlox, Mooa CON9Trr=ONAL PROVISIONS iron MUNICVAL Haste
Rtut 19 (1953).
4' See Fordham, Ifomc Rule -AMA Model, 44 NAT'L MUN. RL•v. 137, 142 (1955).
The approach of the draft Is to strike a balance by allowing cities to enact private
law only as an Incident to the exercise of some independent municipal power. Id.
11 MAss. Coxsr. art. 890 17 (5); SD. CONST. art. X, 4 S. To date these are the only
states to include such a provision in their constitutional home rule amendments.
rODm. Coot ANN., lit. 22, 1 902 (Supp. 1968); GA. Cots. ANN., 1 69-1018(6)
(1967).
"For one of the few judicial interpretations of this clause, see Marshal House,
Inc. v. Rent Review k Grievance lid., 260 N.E.2d 200 (Mass. 1970), where the
court ruled invalid a rent control ordinance since the legislature had made no
express delegation to municipalities of the tower to engage in such regulation of
the landlord -tenant relationship. Id. at 207. The general police power, by Itself,
was held insufficient to validate the ordinance, without prior legislative aulhorira-
I�_
I�,
0 0
642 IOWA LAW REVIEW [vol. 58
of this provision till clarify some of this uncertainty and will serve as a
tool for uscert:unmg the most appropriate roles for courts and legisla.
tures in regulating municipal enucunent of private law.
Ilecognuing the undv�irabdity of allowing each municipality to
enact its own law of cunuacis or toils, the purpose and effect of the
AMA m'ovision is to restrict the enucunent of private law by munici-
oowwer. ' Ciat7s7,fm AMA provision would restrict such enactments
to stiva ions in which there has been explicit constitutional or legis-
lative authorizauun of a specific police power, such as the power to
Where there has been legislative authorization for a municipality to
exercise a specific police power, this provision may enable munici-
palities to enact private law' which will aid in the effective exercise of
that police power.;, For example, it may enable municipalities to use
ipal enactment o private aw appears valid, since it has already been
seen that most private law enactment by municipalities is merely in-
cident to and nn indirect result of a valid exercise of a police power
such as the power to regulate streets. Qgrnmendable as the draft may
Among such criticism is—t-WLT-Joubt that the draft's proposal has
achieved its objective of removing the uncertainly from the home
rule area by making explicit that the power of municipalities to enact
private law is very limited. Instead the vagueness of the provision
itself has apparently created as much uncertainty as it eliminated.'
Depending upon judicial construction of the provision, ordinances
which have been validated in the past, although affecting private
legal relationships, may become invalid in the absence of specific
legislative authorization of the police power to which they are in-
cident. For example, legislative incorporation of such a provision may
result in the invalidation of a rent control ordinance that had previous•
ly been justified as a valid exercise of the general police power.
Similarly, municipal enactment of civil rights ordinances as an exercise
of the general police power would probably be barred in the absence
don Id. The court's interpretation of the constitutional provision limiting mu-
nicipal private law enactment to situations incident to an exercise of an inde-
pendent police power appears technically correct
,s Set Marshal Howe, Inc. v. Rent Review & Grievanoa Bd, 280 MEN 200, 207
(Mus, 1070).
is Ste Sendalow, supra note 2, at 077. Cf. Dunham, Private Enforcement of
City Pianninp, 20 LAW & Cotrsrrer. Peon, 18.1 (1055).
',It is conceded that the power of a municipality to en in private law mud
be restricted. The real controversy Involves the degree and means of this
restriction.
is Ste Sanddow, supra note 2, at 875.79.
;# See id, at 875-79. See aW Marsha) House, Inc. v. Rent Ro•nuw & Grleva=
Bd, 280 NEZd 200, 204 (Maes, 1970).
I Vol :4
I Grievance
•
E
rual.il l NT 643
express Ie!;ishdn•e :nnlnn vale,m of the pot: er In rm:irl such ordut-
'1'hi:; tvo.abl cls, �.h. ;,pp••r�n:ao• a r V. r•.... n III,-
s.
II,• prr•h„•r,c
:•:,..,era, whoa,. the dill,cuh> of h•gc;l:,du-, •.; :.a vu r; In nI;ILL sp, colic
n.�honzdion for encs uu:nicipal action oilurdnrted br the hu::a• nils
ventrnLr
glut" it moy Ix• vabd br :•p• rdically :mllu,nr• uuua.cgcil a1 r.n nl
,! pnvale law wh, IC d c: incident to IIIc '-X'aruv11
al, peal•:nl
• •lees power. ihscems unneec:.sary and unw::,e Io o
furvrlo>..nll__uther_
�. .•ihililil'5 of loonier Y.r enact n!ep(_U yiTa_i•, Iatt'..LYIuTe_lliLiC..IL15.
Such a
L.ru no speer rc egislati��c_ullnaieaumt,_ limitation would L.:
,,Tart' o t e purpose and function tit evniv al welfare clauses of
;.•,eau rule provisions and charters, eine' such clauses have been ltber•
ily constru:d by courts" in or(]-,:, to clle'luat•_ the legislative intent to
;rant municipal:lice head discrtion in the exercise of the Police
power. Furthermore, the many important factors that courts have
taken into consideration in n:gulating municipal enactment of private
!mv cannot be adequately considered when the determination is limited
to the sole question of whether the private lave reg
ui;deun is incidental
to simply
exercise
too consider .11IC(lprumly Ialla•sloul, faclursLegislators
how thvv
vmplY
:hrruld be :vcil'hed in a given cosi prlor ba when the cosi actually
arises." This is merely e.x,inplary of the impracticality of genoral
legislation, sorb as this pruci.iuu, in an arca such ;is nluniripal onact-
ment of priv:d,r law %%-her.. is a veld nee:ta.ity Iur case-by-ca,c
analysis and consulcratiun Of the Into and needs (or the prtrues in-
volved.
Furibennure, when a municipality docs have the plower to onaM
private Irov under this ProrionI there apps..: to he no limit •tions nit
its exercise othor than rea.auahh•nlss. The potential for unnecessary
disruption of priv:dv legal relationships is, IIIc, fore, great in those
Inuiled instances in which private kw: enactment is pernilletl." The
L•naclnunl of the AMA proci::en may well be the
and result of the
Inhibition of stow -111,11 rmli;etive to experiment vnlh various Solutions
to local problems excePl where there has been an express legislative
authorization of a specdic puhce pena(r, it is therefore necessary to
examine the regulation of municipal enactment of private law in home
rule states where the AMA provision has nut been adopted.
:IS,, Sandalow, supra note 2, at G79. '"rhe legislature has neither knowledge
nor time adequate to Permit it to assume primary responsibility for the myriad
Issues presented by private bow making at the local Ivvel." Id.
:+See Montgomery Citizens League v. Greenhalgh, 253 Md. 151, 161, 252 A.2d
242, 247 0969); 6 MCQea-CI9, suPra note 37, at § 24.44; Westbrook, Municipal
Iloma Rule: An Evaluation of the Missouri Experience, 33 hto. L. Rev. 45, G7 -G8
(1968).
e,Sec Sanrlalow, supra note 2, at 678. With a legislative formula such as this
provision, there is Icsa opportunity for judicial balancing of interests such as the
value of the regulation to municipal programs with the resulting disruption of
private legal relationships.
no Id. at G79.
at See id, at G77,
0 0
G4.1 IOI'.'A LAW REVIEW
Tlu hnul0 nor I;ro1 k
am, of nu'st 11;110; have included limilations
munlcipalitip : me beamed pnwecS Fuel inrFlt,nlenI with stale or tha!
laws. and ;d,., II1aI Iles power a 11...1 ed to luc:ul 1M,ir, Iej gem•r:,!
past, I:iecn but th0..e :;1:111d; rds," tfle nn2rls have been able to ,In II•...
monitWhere cd p�necr 1ihih• are anmodau2l" both local and state inter nlr,.
Where unwi„Ip+il :Icunn has en(renehed upon mallc•rs of tqs
conc•crn cunilmlinl; a-uh :dale I;uws or poliev, and where it hasallhre:�h.
cued to unduly di:;rupl dv- tnufornuly in private IL -gill relationshq,.,
the courts luno un•;didal'd the ;moon. Yet where the municislul'
hos shuaal the 14'01— ,Ilp for local rollirol and that the disruption
respond logal rel:donrdul"• Is Iusllficd and reasonable, the courts have
responded m a mnuhn' Insumer and have validated such action,"' de”
cause the municipalnie •.' nerd Iu mart private law depends hirg,h.
un the factual r2rcnnudaFrt's In each ca,d ;tltd a hal:uN'inq of stand amt
lord interests, it is virtually iolpossihl"' for a legislature to (art,rt•
or provide for the tomer"us enlergdncids or situations that may arise.
The most dcvr;Ibh• ;1
goner,! sl;uul:n'd';"(';tell the Iege.laulre c -an tale is to establi"h
s, such n" the c•nnsistency and meal affairs limitation,
]caving the rest to judleml ;mmlysls and determinnlunl• The analytical
processds of the Pullet."] Gel'unl me bum., suited to handle this type I,f
problem'- than any precise IeGislalive forimilri This approach al.
lows the rowels to w,•ivh the interests and needs Of all parties involvrrl,
which is ;I I1CCl'1SIt}' lel :111 area surh as this whore the competing in-
terests are !;cnrr:dly ')I 'It ar001mlodat!•d on ;I case-hy-rase basis rasher
than by rvi eml Iegislaliou. llhth the requirement of consistency and
limitation to lord ,;(airs. Ike Iogislature retains sulficient control over
municip:d enactment of private law. Any legislative attempt to regu.
late more closely lie municipalities' power would result in an utmeces•
nary restriction Of municipal initiative.
B2 See, C.P., CALIF. CONST. h11C11. CONST, 'It. 7, § 22; Nm. CoNsr, art,
XI, § 2; ivis. CONST. alt. II, § :1.
11 See, e.g.. COLO. Consr. an. XX, § G; KN. CONST. art. 12, § 5(b); MAINE CONST,
art. VIII -A, § 1; Outo COUST. art. XVIII, § 3.
" Iowa courts )cod ;12plird IIII-W IirnllAuons even before the ro,Btitutlanal home
rule d 363, 3GG See City of 1),a Moines v. Heier, 251 Iowa 1206, 1210, 10:
N.W,2J 363, 3GG (19GO) (municipal pnlicv powers ore limited to subjects of loyal
affairs or local concerns); Town of Randolph v, Oce, 199 Iowa 181, 182, 201 Nly,
567 (1925) ( local ordinances Inust not be inconsistent with slate laws or its po,
licy
expremd therein),
"See text occompanyinn notes 22 -ori supra,
"" See text accompanying note:; 35.39 supra,
"See text necumpanying nules 22-33 supra.
"The difficulty Ism courts and commentators Lave in dealing, with the prob.
lem may be indicotive of Ibc 112ublc•ms involved in Attempting to legislate on it+
matter with any degree of spsdreity,
"See Sandalow, supra role 2, al G79.
"See Sandalow, supra note 2, at G79. But Be, Westbrook, Municipal line,,
Rule: An Evaluation of the Altesovri Experience, 33 Mo. L. RLY, 45, 74-79
Comment, 'public Purpose: Role of the Judiciary in Conduct of Ifome Rule .1f1j•
nicipal Affairs, 11 STAN, L. RW. 788, 794 (1950),
[\",!
are -annex
ro. COY9r, art.
Dtamc CON5T
itutiowd home
1200, 1210, lo.
,bjecl.•I of local
, 152, 201 N.W.
Its or its policy
kith the proh-
egislate on the
unicipal now
, 74-79 (19GS);
acne Rule .1fu-
is •
CC1,1111 F:NT 645
rftl _
,fie belief that this rcliaurc on the judicial pro,•rss will n!milt in un-
a•rlainly tlms udlib1luu,, Inlmwipal inlY:otive :old action appears er-
sr•and,+il,fl!''sx1,at
,valunorl(liar vof ollnont,proVIA'S ;Ia uquc
,,Ilpnrlunity and invitation tor mun!c!pablars to take a more active
rdl• in the solution of thI•Ir. prnblvins, Iowa's constitutional home
rule provision;•, which iucluA,.s the cwlsl_teucy raqulcl!oWnt sad local
affairs limitation, provides the courts with a sulhctent 6asts for regu-
latiug municipal elmetnlent of private law and balancing file nttert :sts
tection
private l galds lrclauoorties n hipst%Ili]LLprovisi lSufficient
ma e.for Ihv :Incnn mod r
inn of the needs :Ind interests of the slate and its nttuuc!pahtics. Any
specific reference in the statutory revisions relating to municipal en-
;Ictment of private law, such its the Ah1A provision, would therefore
seem unnecessary and unwise.
The puwvr of home rule municipalities to enact private law is justi-
fiably circumscribed. Nevertheless, this bo!ited power can he of Sig-
nificant importance tomunicipalities in solving the serious problems
confronting them. The restrictions on their ,•xercise of ill'spaiv n,
therefore, should be no greater than ahsuhm•ly necessary.
creasing responsibility being plated un cities to resolve their own
problems, they should b,• enrourm;ed to experiment with various uses
of this power. Emphasis wI judicial, rather than rigid legislative reg-
ulation of this power, seems most consistent, with the hurne rule cun-
cept and the prevnt needs of both states and municipalities. Con-
sidering the hesitancy of municipalities to exercise this Hower in the
past, it is highly doubtful that this more liberal approach will result
in a deluge of municipalities attemp"llt: to enact private law with
subsequent disruption of pl'iv:te legal relationships and an intolerable
increase in the workload of an already overburdened judicial system.
More realistically, it will provide those cities who are actively inter-
ested in solving their problems with an opportunity and a tool for ac-
complishing their objectives.
It Iowa COST. art. Ill, 6 40:
Iduntcipal corporations are granted home rule power and authority, not
ocat
inconsistent D"lanmenhe ,; except thaws Of the t they shaeral ll not haTI1hIY, tove power to levy J,,Inine their l any
affairs :Intl 1;
tax unless expressly authorized by tilt general :useably.
The rule or proposition of law that a municipal corporation possesses
old can exercise only those powers granted in express words is not a part
of the law of this state. Id,
a
II \.I 11:
•n f
rNnn F.nvnnn
L, 11). I.L.\1
William and Mary law Review
\'Mt.w: 17 -- Gnl.1. IVii _-Ni wimIT I
AR TICLES
IY7NSITFU'rioNAI.:\IUNICIPA1. II()),IV 1011'
SIN(:L T11P. ARIA (`L(;) .\101)1•:1.1
1\I•.s:1.111 \',1.1 A\bl N.11 l+1•
.I-hnoq;hout its FloIll.uive peljud, IntllnIpal hw.ic null. III the United
i Stales was defined pimmi ), Ly the ir7lperium in imperil) ductrinc.' I he(
c•onslruct :111th cs nwnicip.d :uuonulny tvi111iu u liuninsl sphcn, Ruch as
I I In, anielr 1. hne.l in p.ur nn infornun.... ..In pined from 4urM innmuc+.nu during
I s.'m I47U ...I 1471 u. ,hreco.n of 1131c own... pal 1, :u,., ...n,• Jc 1..o Ino Its of
a unninuany affiir,.+unr Iehi.Iattle refcirott bnrvam., v,d un.v. nuy lnufrs.,e+ul Luo
mol pulitioal sciemc. ami on correspondence .mer then with wevul of On,, ulhcul+.
l'hr .onhat with,%... rhanall throe svho canpermcd Ly.upplving infutni,uion, hnlh
puhl.shad a.ul m.puhlohrd. Rnp.m.ihaily for :111 nnicluvoo.. du.cn, :nul f..t Al vrtun.
.� ..
hi, It.
'r\ I1.. M.A., Univeniry of Kentucky: Ph.D. Uuicenit% of Win ... +. A.wrute Pro-
f,,... of I'.drtu..l Scirnrr, Vnivcnuy of Rennnckv
'J I. I Ile imperium it., fatrprnn doctrine uripwir.l in the dcvrlolnnrm of con+ouuumal
Y
hone nile in ,\bs+.tan. Ily dm pnrvisinos of rh,u +cur's cunsnionum, cit ic+ wire ..nthor-
ted o, fume t'harrer+ for Ihrir own l;u+vrn.urw %oo,i+vat ,ruh .1113 .uhlral .n the
Cnn.otutiun and law. of .he Stat.. \I,, fn+'+.. art IX, 5 16 (IHI' I. Ihi+ te.lunamrnt
mas rcrnnully interluctcd to mean "tlut only m nuucrs nwnlru,g snicw ole concern
q did ,hailer pr,.6,ion+ love to hr c.,n.i+Icor with and •.uhjrcr In the cumtimtion and
Vanlandinl;hnn, ,ilm.iuprd III) ror Hole res die United .Stater, Il) N7a1. h i\lnxr
S L. It. s'. 269, IH4 (1964). Sir alto 1\'csA.r... k .lfimicipal /'lune Hole: An Evaluation of
Ike mioauri liapenenee, 7f ,\lu. L. it, . 45, sl ;7 (mg). Thr irrm "i ... pe,hnn in
inrperrn" uas used by Justice Brewer w describe this farm of judicially defined municipal
auunun.y in St. Lmus v. Wntcrn Union 'Lel. Cu., H9 U.S. 465, 46H (1947)• For a
gcnenl di+rmsinn of the Icvel,,pment of the lmprrio doctrine, ue Vanlandinglum
urpra.
There is no unanimity an.ong authuritic, as m the proper meaning of itmnicipal home
mode, but historically there is inherent in the conrrpt The idea of some drgrce of local
pmcrr free front state legislative and administrative control. At Inn one vnl"T Ins
suggested that home rule implies a federal relationship lxtwcen the stare and its munia
pAid". Sir 14, .\Icl7av, Tor Ls\v esm ntr Parcnn: or \Ic•vlavu. Hns1r Inas, ch. 4
11416). I husr attempted judicial definitions of hnnie rule w.ggcsr that it Prnans caddy
III
U II 1.1\\f AND %I.\us I \w In. VIF\V I \till. 17:1
I'moniciml affairs," a rhe hound:u'ics ttf which :Ire left m judicial deter_
min:nion.' )iclicvinlf r1Jc i7nperio nnnlcl' m be unsatisfactory :u au execs-
sivcly I"i«Sw ;aid uncertain :Ivenoc fill nunticipal escrcise u( home rade
pnwcrs;•tile :\Dleriuull\lunicil);Il snciatiu❑ (:\\lA),suhsequently re_
_.
or lural wIG!lnvonu,rnr ut w the inrcrn.d aloin of a uumitiluliry, Ste, e.g., V tornrY
(;cel. ca: rel. Mics I. Luwrcy, 111 .\rich. Li'l, 64G43, 97 NAV. 719, PA1 (NOD; Common -
ex rel. Smillie v. 327 J!7 Ya. HH, li?. IVl A. AM 00.11 (1937): Pcople
rT rad. Alcnupuhtm Sc. IO.. v. Se:nc ihl, ,if I'at (,uranin, 174 N.Y. 417, 471-I2, e7 NX,
(o, 70-71 (1900) d41,111c rx n•I.Miller t'. hJuiSln, N Coln. 145, IS9, K(. I'. 131, ?iH
(11mi); I rogley %. plicho, I!6 (:al. 311, , SH p. 91J, 92S IIH7a); Planation Pipe Linc
(:ity of Rumen• 2!7 C.... 1. I6-17, 171 S.1•: `d MH, H79 (1970) 0131o, 1-, ,liwitt-
uy;l. Comtinnour al Irvi•.ium suiinl( Ihr Imrpu.c tar meaning of boon udr, rrinfon'e
Ihr inditial hmiution. Sr,•, r.K., ALA%. (:nssr. art. X. 4 I ("nissinnnu local >rlf-gnv-
vinnrem"); Coln. G.Nsr. art. \\. S 6 ("dm full right of sel6guvrnurlettt in both local
and mmtisiI,.d muco'), \IASL. (.,)N%I. lar of aun11. If ("iLe rich% of self-gurenntrnt
u% kraal maitt•ri'I. N.\i, ( : . I. are. \, rd•: t"nuxiunun lural •.rl(.ruccnin¢m");
('it"'.:nnc11,1 X\1'111, 3 I ("rhe tight of +elf guvernnu•ot in all lural maueri').
l'he 1•I.aida rou•.onmunal pum•.inn is luili"'I'dy dhnnativt• of the n-.oictivr al..
Ielrnuh bt u.."n"pol Lura.. rule h pan ides due ".Muoitipalmrs +hall h:or g„rrrnmen.
I d, t let pnntc and prvprirtary power+ of rn:iblr dun its conduct oulnuilul guvrnlmcnt,
l" Ifon .municipal Lou nn .... and under uumiapal W M-", and may exons :my power
for nnmililnl pnrin,.r+ t�arelu a, mhcrwisr lelucided by law.' FLA, Co+s 1. au. VIII,
S M.).
'I hnrr•how et: rmirr period of ruo,titotion,d hunt rade, and I,alncolarly dining
die pail 40 )'tar., I'll" pntviviuns .nlulacd h:nr placed hmur Inlr, csprtiAly olotanlivc
home rule, alnrra completely wbiret I" +ort Irvi%luive control. Inauimt'h at these
lerovkion% 1m4a lower o rule a nutter of •.laer Ir)lislative grace, not a cunstnon"'ill right,
pnq,onrnn of irrrperin home rade uwully tumider them unsatitfacuelc, and dm char-
ncnr of brant rule rantall: under them welm mcmwisunt with judicial and cunslim.
timid definitions.
I lone relic dors not Ie119AC a city from its mpnmihidirirs and uhli!,atiul+ imposed
by preoptr state laws. \lanv mmnicipal ulliciah Imlieve that it unpuwclA then% to du
almost anything thry choose free from stare legislative restraint.
'I
almost hent state
Irgi+ladve interference in what ehry eomider municipal tressurirs. See generally 73rown,
llrnne lend, in t%larmelnuertr: .41nnicipal I "edam acrd Leghbrivr Cnurrol, So MASS.
1.0.211, 79-3I, 17-19 (1971).
S. Ra moil Jit for determinatyn.uf .wbat curutitums-aJiwtsieip71.7f(71[Uc..Lultafst7l
rests welt She one <nurtt. .Ser Srve ex rel. Ileinig v. City of A1ilw•.utkir, 771 Ore.
471, 4H 3N4, 371�.h17,Rn 6Rd (196'.); Iii+hap v. (:icy of San flaw, I (:al. 1.1 SQ (.7.61, 4M3
P.ld 137, 141, HI C+I. Itpv. 465, 449 (I'M9).
4. The impnnmr in impnin model eor a sed in all edition, of the dlndel Slate Con-
•.tionion puhlished ley the National MunicipalI.rague (N.W.) Irewen% P; and 191 it
hrrrinaf¢r referred u) ac ehr impnin nunlrl. In its nlnr recent edition. dtr VMS. los
preferred a Icgislarive supremacy, model with the inrprrin model as an alrer vive. Ser
ti wn�sr. ,%Iwonro. LIAme, .\Inure. Srtrr (:II11T1rl•tmV art. VIII (tech cd. 195))
Ihrteimfter cited as N.\II., .\111141. Stan: (;u1%1171MOSI.
S. "The familiar distinennn lwt%veen +tate and general tuntetns and municipal or
local affairs, with which courts arr confronted in certain existing haute rule states.
has not I:ecn snsc.ptilde to satisfacrnn• pplicvion." AAmatnsr Sleclrrrvl. 1.1'.%nur
•I
!;
19751
named the Naim!
Constitutional fat
n different, Ihoos
After reservin!; t
home rule, aduiln
mulel lei( allures
pmvcrs and funct
replies to yucstio
1971 to dirccrors
of municipal govt
,,pinion crinvernil
proposed in it.' N
IN.,.,iutnl I.ragur ,.f
IL t1. 20 09$11 Ilea
lt,,irnn in irnpr.irr is
omot. V6 for C I fro.
Un., cniry of 'I rouse
hs. htn. ,upheld
•.o•.raintd aad the in'
k 1ptiuuu uturiv.pal a
Sce generally 44 v.rhrr,
6 Although oI-r ill
Caeluoinv on Ib., -.c
stionional oumicip:d h
of its im".unar. Sr:
he role nudrh con
model is frequent) as
Emeritus of the I;
Ir.�i•lativr .uprenuc;
concept of huum rule
Uillun's Rule by pun
vary sulnnnticr. state
pluhibit or nullify sur
precludes delav or der
cation thar the VI f: i
sideting in the agyrcc
hcen included. virn4d
Lorioir,l)•, nnh four
Amrrirao t\Innittpol
advoated. See It Me
home rub "a% a rcl:ri.
The (ulle.r molv'w .
,tan govrrremenn, Sto
or •,carr vlminiurni.r I
/. .Sr.1 ac II orfar!
H. Onlv a shells lar
Incfermi he NI.0 n•
I'r a I \11 '.o In a1 HIMI t.,1 11
11.wlcll the \.11nn1.d I.car,uc of Coles l \L( I, In1Llr,hnl a Icpun, IluJcf
(:rntttillmurral P,ejvitioru lo, Ilmar7(I,fl Holm, Knlr;' Min -11 pulposrd
.1 differcio, Ihlnufll nut cntilcly nevv or unuluc, appnmch uI holuc Tule.
After reserving lis cities lhcrosclees 1no,t -d lite llrocedur.11 :1 -ccisof
hnmc rule, :ulnuniara[ice o1g.uut.auou, and tu•I.ucd mmo-is, lite plollnscd
uunicl left :dlucatiun o1 dctcnnnution ref nut.\ sub,ulltivc hook Iule
pnaers and functions to IIIc v.nc legisFanuc ° I Iformanon obtm.ict from
,'plies tv yucstiunnaires sent by IIIc authilr Jurulr the years 1970 .Ind
1971 to directors of state ulit licip:d Ic.wties and oIIicr inmreslell students
(if municipal government in the I'naed Scots revealed nu unanimity of
opinion concerning dic 1nihTV of till- n•porr, oI "l the hnou• Tule nwdel
propo,rd in it.' \'ccctthcic•:,, the \L(: report 11.1% tic;ltlV iollnenccd the
I\10...1.11 1, p
aar of Coir, 1. .\I. yin I. l."",.1 u.,.a I'1,, •,..io.. u,': \h':1, n•" Ill".
1(,1, :U (14,1, 1'•uarnralt, u,, I " \L(., .1 1, n.rI (',...on rur,,r I'xovtsur., 1. "Irl
prrnlur r1, nnpern, r. nm a '.ua6ddt. unit fpr;' "I'lv to .m.�ar's limns ntL qur.r ion
"aim, 1o,i.r f Ibdnlae, fixer unci Ilirceo,r, \hminl,.d Irrhmcal Adrr,uts Srnrrr.
1'011 rt. ar) 1,l I runr,wc. ( Ir he1 L'. Hill. Ahhr,nrh . me u,in,'rtpal lav r.r ill powrt
Lein uphrlil nn,lrr Thr irup.•nr. dart rine. it, inti, pnuu o, Ilse I. Iumrr. nnolly
sr.i.nnet u"I the it....hell Icpal pw.vedmlplieu u,luucJ m d,h,'r rhs Inn... 1,l
Icpmuulr uurniup.d anion a, wlnumiJll den." tis! I::!I the said,', al rhe
.Ser genoall� %%rubnmk, rnpra nam 1, at 76.
n.Alit ouph rill report s.i, nicer ,66211v .e 14,1 A\Ir\ ,a it.,
Onundner nn Hume Itule. it mmelhrhly, reprr,rrnrd Ihr I1,%, .rc.nl.ddr pr•r.r I. um
.timtinnai it,anicipal [,nine rule envorahng to Ilse A\I \\ Ise, ni.r Ilirrnot at rhe tittle
of irc i..uancr. .Sir \'I.C. NInon. Cns,uunorvat. V].... u,.., rnpra nmr S. at t 'Ihr
It, nd1 nunlrl nmuined therein i, hereafter I,fml,l of I. rhe \'I C mn.rl Ilur
model is frequently associated with its principal an li.e. Ur. Jclh•r.un It Fw.ham. Draw
Fewritu, of the Univerwv of pvnn.ylvatim law' tichoul. althuul;h in hr.ic 1111 ,i% ,late
leeidalice .srpreuracy over cities in the .trh,r 11,1111• n-ahn—r. 1, list r1, nldrr lhns dor
concept of hunt still iutlf. Perlup, it% unirpne n.nrnbanon i, to anrnrps Is ."mr
Dillons hull- by permitting municipal emrunnn lit hunm vide urdinaure% ah"vt tan
vary Sth,unote sere Itgi.latinn. Ser nntr I6 mlr.1, \\'bile rill start. legilannr can
pndnhir 1,r nullify bitch emetmeny thrrnryh prior ur auh,rrlucm Iegr.latinu, fire model
prellnde. dela, 're druial of Imntr lvle by Fitter I,p;%Iaove inaction. '1'h11e is 1,r indi-
ta•iun that the \'LC intended the vertaor, aJnlrm ns of rrs Ionic sell model, bur run-
v,!,jsnq in the aegreevt all stat, cmItinninns in sel irh puninns n( rhe model I've
horn included, cirtrully the entire, ml.lel ha, hcen adopted
I.., nousI s•, only four year. prim to puhliratiun of it., fail Inmc fish. spun. 1I. dile
:\noncan .11uni,,pat Awwialion puhli,hed a studs in "It'll the i ... prrin model viva,
,' h.K'.ned. See It. \lure, limo Hc1r rex Autao:l. Corns II'bpI). Dr. ,\Int defined
hnmc rule "a, a relatimv.htp ht.nvten Ilse Titin and the .t 1,r• in which Thr nor•, tninv
it., fullrst authors I, r,, determine Ilse lt-ganiiaosin. procedure,, and powers of their
rr"n Imvrnunens, auJ a mainmm of frtedom from Control Iv either the Irgi.611-re
It •.Tarr astmini,o l t1,, rdhcrn." 1.1. at S.
7..See mer It iIII ret 8 at. arcnpasyinl; tea.
K. Only a .li;lhr nniorim, of re,prrndesit% its Thr merlon'. Inn¢ rule rl1,e.bonn.sin'
1.0. Ind he \'I.(: nro.rrl to the imperm nanlrl I ""...hill, dor.. which "rtr vnhila
it II 11 %\I %%D \I %Ila I tl% Ill %.lrtY I Vol. I'/:I
draflim; n( sc\rlal ncstIV adoprcd .11111 W1,i%cd r"onsontlion.d IIIOVisions,
:1111 may I1:1ve N1iu1111.11cd (lie :ulnlni, it til consfiruriomil llutnc title, al-
rho11gh no concrete proof of this ofe(t 1s muhlila" Its!rrc:lresl impact
hats been in dates where It- I I I I C 1111 svgs 1011 cirlier moll rued iuj.'Inuch
as 11f all ielpn-in stat(%, only Alis',olin has constinnionally mibmir ited an
NI.0 provision for ifs csisriu,. imperi„ •.theme.'" In ns sixth edition of
the dlodel Stare Conitilumm, the National .\ltinicip;d l.caquc adopred as
its preferred model lone ver\' similm o, Our ofthe NI.C.11 jot Igintr solely
low ur w'hal, eapn•s.rd (0o polrancv, IN rphr. tverr n•Crked; of rhr.... ?0 indicated
apo f-ren,e fool rhe I\1 I: nlln h•I.
'1. lu Iota. tic r,, hums Iul.• is %it m.dly door....... ..r I.u1.v 11.1.'lII i(0 ...nn• .1 11 r., Ilu'it LLh
.ullh1n.rcd C1-1111 it oon.11y nr he %tat orte in .r vi n- stair v % o Ill I..doll I. i..i.%iIll. i, an11
A�.11.i1La; f i);islnicr )von. ii11�•, iohirli i.hiains Lv
Inert-
. .....
nert.....air.iriTn1a11tV ..I uhiJ. n ...'room, until I .ally upheld, t% um stidelY practiced
n'rp1 .. Nen• Jnnr% ....I Vitpmia, and I1o:.ildr :d... in \\'i•„na%in and W.1,hinlnun.
I h.....ger M., %Imp aJd, in11a11y nuke 1(011%111 uriunal lip I%kioou Jolt Imine rd,. Coln -
..,tiny Icl!i%hr.... : I...u.r rdr, srr V.ndandinl•ha..1, .unto nntr I, m 271.77.
Pr,,sisi..n. of .nine son for ham.. ndc are c .... Ltitscd pn'worly to die I flInGtris of
io %encs. twice rbc nunil,, r having +nCh lrmi.ioon. in P); t o hna the Nl.r: no..W was
fr..lmud.See Al c.. Cr..r, art .\, Axrz, f:n %%I. aro. XIII, is ?.t, (:rat_ Coat. ort. XI.
,'. 1. 1.7; Cult). Cu%sr. ..it XX; G.. v, (:n%•.i..,,I. X. I too. ( ,,%r. ao. VIII- S\ 1(g).
Ill'); C.%. (:nV%1. art X\'; Fletvot (:11%al.:1.1. \'ll, S t; 11W... C0,15T, an. XII. 3 ?; ILL.
Cow.:ut. \111• S 6; Inw% Consr. art. III. 1 411, K,,. Cu %a. ;oil. XII, S S• Iia. Cns'm
air. VI; Mr. (:.,%v. air. VIII -A, \lu, III,. XI.A. XhF, XI -F, \I,,%, CoSxr. art.
of a..tcod. 11; Mull. Corsi, art. VII, O ?, ??; dhc%. Covr. art. XI, 1 1; Mn. ('nv%r. art.
VI S1 IN(a)-(%), 17.17(:IJ; Al... r. Curse. art. XI, N %.6 N. it. Cu%sI. an. M. is ? 5;
Nrr, Cur'ar. art. Vill 1 x; N.1d. Crawl. It,. I, air. \X\I.X'; NAI. (br%t. art. X. S 6;
N.\'. Cnvsr. art. IN. N.h. Cus%r. art. VI. S I too; (bun Curet. art. XVIII, (1x1..%. (:nt]T.
art, XVIII. SS 1.7; floor. Col%tr. air. XI, S ?; 11%, Coir. art. IN, S ?; R.I, Cnv%t. an. of
.amend. XX\'III; S.C. Coal art. \'III• S 11; !;D. ('ora, arr. IN. S ?:'ll %v. Co%e t. art.
XI,'. 7,'IIx Cooat. air XI, 1 %, U. of Cn%%.. 111. XI. '% I. \\'.%n. Cuu1. .111. X1, 11 lo.
ll, W. V%. G1%+r. an. VI. S 19f .1, SSI.. (}1%a. :r r, XI. S 1; \1'11.. Cuv%t. art. NIll. S 1.
A hlinngh it is dilfn uh rt) derrrmine III,.,n,IV the faiellt u. %'Lich ImIlle ndc pnwen
,.randy are esenl%ed, with wme fv%v rvicep,iwns du•v appear more n'ideh• used in
sr✓r% l amy the Innpc%t losrory (01 Ions ndc. \\'i.It rinn•. Citic% it, Dates uhich h:n'r more
n:. only cnacu:d hnnn• ndc likeb' will nuke nun.• raa•wty u,,- of their poo.. rt). Repdin
it. It, author'% gnnrinnnaire received during 1970 and 1971 and ulAcqu,nily Imldi%hed
infnnnaonn have ped rhr aurhnr to mriclndr that amnng the %rare% with lung -%ending
home rule pati minnv, hutne ndc lu% Igen nu1,t %igwmi,ly raerci%c•d in .AhI lli.arl. 'I'rxaS,
Ohio. Oregon, Cohforrob. .\linln•e.r'I, Cnl..rmho, Okhh(0ma, and Arizona, and among
,late% with inure recent home ride enaconrnrs, in .\laniand, Cunnecticur, Illinnit. and
AI.W;a. Home rdr pmeen :din appear widely milized in the IeyMarive hnmr rule stain
.f Virginia and New Jersey.
M. New Ynrlc and Rhode Wand have timucceWnIIY attempred to adopt crneior.
tiunally the \LC mn.lel.
It -1'hr text of the \\11, hrnw title prn,,,iur, oulonh' Jowl- n.vincr four, Ihv M.r.
mood(., i%tnntain.J in \'W., thmrr. Scut C'1wourniv, ;Ilra norr 1, art. VI[. % h;
A connry or city may rat•mi.e ane loei%ame pnuer or prrfrnn anv
Lmcrion ohith I% unr drmrd m it hs •r .li..rrrr. .. nor drnkd m Io,n ur,
oyer, Impos.
IIII11miOns it
•fills con(
Ih•sihle ippr
tlunal Israel'
w as pnhfi.ht
as the Xatiol
ar Clain 1.!cn.
:'.,%crrjapi c.
Irendt•m cool
poo r: ulr for I.
L'. I nrdh.nu, W.
ly-; ,II .I, II'\I 1111,11. ,U 11 i
froill file 11111111m1..111dI..InvIn III I'•r11,1:11111U11.II111n\Isl,1lm, .1,IUpl,'tl '�II1CC '•1
ns pull deal 1,111, Illi M I: 1111" d .Illi, l''. IIII II'h 1111111' lulplll.11 111.111 the
imperio model as a 111.111 fur aurhurimnl' Ilulnlrule.
,
rl
'i
Fordp:on-NIA. Nonrc I(nl 771rrnr
I)c.m I Iadlt.lul rlu pnnclp.11 anrh111 u) 'he \Ll: luudcl, .Ipp.IrclttlV I!'
hcCallle convinced 'If Ill validity of I11.11 .lpplu.lch In lunne oda Ihruufrh Ir�
Convention of
his imeart'h of the records of the Ohul (:unstnot ional ;•':�
Il
e
cht the pn'srut ( )lou i nprrnl llrucnlnn was plupmed. I Ie rc-
191, whereently
stated hi: ill%pir.uion for rile \LC module
It is vcry knenvull, dill :uuunh [lie dvlr:.;:ucs at file 101nol I,•if-
LL.1'. 1111'llibel' of Illy hisoiry I'm rnlrV 'If rhe ()hill i 1
P19111r❑ 111 1'11' .I
til.ur l'nlyersdv, Ih�dl'v.nl Grolly \V. I:nu;ilr, xshi anicul,ncd a
Mint ode Ilea ort ,s bird to tnnl h nu111 it'e'm Peal, II.Is hall
In!lncnce....
1 Ihrn nc jii
Pit drs,ul hnlplll LJlrvrll Ilial 111C tiu1;lUtionji glanIf
ISI
Illh' tl 11 lllld n'11 In' 111.0 ILII 111 t 11111rI I1LL I IC 1'\hill '•1'd .1 1,,11
I;rallt III I IIIMIIIII111"' .• 11111 skill 111 hl"11111nC fid(;'.1:111IV, III .Ill ,Ii
Illat flit: h!9'd.ItlnC '"11111 If\ Id1'Iltlry 1'ulllpl'1 t'uf'f',
(((
11U0.'Cr1 ,1
Confer Ilpnll local I'tr, t'l111llclll, .11'x.1\"• subjr-rt to the pal.im"Init
xs
anrhnriry of the lef;nlaturc ro Impose by rcneral stalule sudl hunl'a- !'
'
tion,. cecrplilrns 1rr csrlu•aun•, a'. it sbonld find dcslrahle in the ,.
charter nuuliclp 1111Y r
1
I;cneral interest. In wher wards, :I holm rude
as nuyht hr. "I n'tyd
would have :1 IIro.Id sweep of Inlholny escepl
IIP IIS ch:ll'ter or by gelleral Ictidatma. I his di'lu- 1 aliml \%mild
>
!enirally eliminate the necessny of running to the Ic�IiNhillic now
and w air fur lnabbm; lel�islarioit as to Ills or Thar. Ir wrul,l, more.
over, impow plditical accountability upon be Ic!;islatun• for ❑nY 1
hillitatiom it aught impose. ,I
.
a
l Itis concepnun, it scemcd m file, Involved a very sound :nal
'I
dexihde approach, and I arriculalvd it In a draft of .\Inclel Cunslim• 'jlii
nunal Provimmi% for 1Mollicip,d I ]Mlle• liulc in 1953. The "Model,
known
iclpal Aclaoun, uosv 'I'
was y the American rV unaw
puldi',hcl1 b
the Varirmal I.l'a!lne of Orics.1° :
as
. of brit. I•rm rim c. or of tiunlir, it run's of in r11ss, and i, widlin ,itch '.
luniniin, 1, Ihr Ieenlaulrr ul,ly nnl�h,h I,r I;rnrral law, Ihi, yrou of 1
it ,fid I,w :
home rileI�aw en •.4.111 nal .,I-halt'hr pau rr of ynacl pli,nr
w- of 91 ualr-
gm,minY ci,il relatianshlll, exrepl as inudnll III .n exrn 1
Jull i inclndC pi„rr fir deliu. and i
pendent county 'it ,iw pi,.'rq ,1111
prat ide fir the pnnishmenl of n fcltr y
('wirmmm...I Ilet'nn, rl_II'i,lr ref L„ral lirn•nro....7, 11 Ulan
L'. I'nnlhan,, rI'in •I
5. 01 rl'Ita I(nronnr< in•q nJr. I!u• Ineh uunm •r rf n,r:n6rnlup In
- til. L.J. s•s. ;
%% It t IA\h Asn xh %us I %%s utsucw I Vol. 17:1
Alba dliun uj Pwu. it A N. Model
'I Ito: nunt crucial 1). itrion of the NL(, onnlel Is that VV If :Illnc•:ttcs
powers and functions Lct%vicen the stuc And home rule municipalities.
A nuuhivilml ruwporauun wihiclh adnln%.t home «dn charter may
exercise :thy power or perform Try fuucmun which [lie Iegishtttre
has power to devolve neon a nun -home Tule charter municipal (,,I-
poramun and which is not denied m that municipal corporation Iry
its home rule charter, is not denied to all home rule charter tnunicip.11
❑rrporwiuns by uatt«e and is within such limitations as may be
Ivabli%hed by statute. This devolnam) of power dues nor include
rhe power us, enact privarc or civil law governing civil rehti„us)Iills
except :is :tat incident to tat exercise of an independent municipal
power, fine does it include pnwer In dcline and provide for punish-
mcm (if :I felon v.
A home rule municipal charier corporation doll, in addition ma iln
home rule power :Ind except ns mtherwise provided in its charter,
have all the powers conferred by General law upon municip:d Iorpu-
tations of irsGcncral class.
(:barter provision, with respect to municipal executive, IeghJ:wive
and administrative structure, organization, personnel and procedure,
are mf superior authority to statute, subject to the requirement that
the member, of :I municipal legislative bud\• he chosen hs. popular
election and except as to judicial review (if administrative Proceed
ing%, which %hull be subject to the superior authority of srunteh'
vnoe state Iegidarun•, raises %nine douhr a, m the degree of political arronnuhiliry of
%rate Icgi%lamtc, generally. See note PI infra Pr accompanying text.
I I. NUC, .\10101, (osNIIIVTlm]al. Pnanshoas, mprn note t. at 19. -Fite NL('. wuolet
0 1) properly prnhihirs the ena,uotnt w( special legislation for cities 1, weg"11119
dor establishment of a mnsinmm of four clxsse% hawd on Pnpulatiom with iso Icwer Titan
nen til its in a %inglc class. \Vide it it a% been ,aid that the purpose of home rill, is "n)
minimise the need for special legislarion;' l.irrlrfield, mrmieipal Home Rule—Corner d.
art's Afmnre Approarb, 17 Cuvv. B.I. fix), Ilia 11964, and while most states lace lung
had constitutional im,hilitimn, of some ,ort ,p mr %ptcw legidation, wily .Umirhu-
stm has constitutionally adopted the NLC stipulation. ,,\las%. Covst. art. of amend. 11,
f N. Although whar is tantamount to %pecid Iep,latiun is enacted necammUll%•, ,tame-
times at mmnidpal request. in almost every state, in the few %tate% where Incur rule is
widely adopted and uuee%sfully practiced, r%peciAly .Michigan. Ohio, Alnne,n", the•
gin, 'rtxas, and Calif n-nia, it has virtually ended ,pceial legislation. 'the %ast majority
of states, hwwever, follmv the example of New Yank, where, despite in (mwitnnonal
pruvi%inn which requires state Ireklmiun applicable u) the "prnprrry, all.fir% in rov
crnnent of any Intal unit" to apply alike in all affected units by lou, general in
Term\ and eHeet;' NY. Coc%a. art. IX, f 2(hI (2), home tole is of len Ilo,.i IIcd I mogh
%pecial IegMatiun enaetmenn disguised as general Iegidatiun in the form of "papula•
tion act%"
197i
UGjecth-c of Ibe
Beside sectilln.."
of home rule miri
denied by state It
termining hums r
rests under iu'per
tional or IegisImit
fisc home rule pr
Viable home lull.
prevent enactmen
NLC model evidi
than securing fav(
rests upon txvo pr
first, that imperio
that the stare legi:
of home rule pis,
legislative cunt rol
flexibility in odju:
ibility is considen
cared urban , ivil
units." Whether
foster hmne rule
municipal escusc !
N Although a cur
homer% nor forbidden
e\i.t implied bmintiw
See, e.g., Sununu V.
(19671; w2gnt.. %. .\I
rusher, the ju,huan'
nil municipal utdin.0
o,nnicipal prem•. ui,c
Inn%ing rear.
lis I'ol:•. r•.n..d
oh•dn, In hm int ,r n
dor \Iwpmw (.n. -•.I.,
\bnuana t 1n.•r• ran.
It. Boll I f l..:.• 1 .•
16. Udl„i s It
,sPmedc Crane, I. f,
."will to do nn
tont. \II rn.......
.mains, thr rnrpm no
r es
.c
n
t
d•
t_
'nhn •d
m,.drl
,v","If r•
as than
'lit
'01111 -ran
oat '•.•r,
-.nd II
,,.Itr
nu, 1)re.
roaluut•:
,muo.mal
or "IM -
•tnertl in
J thnnmh
popola
1 w i I an \u m.0 n,.. 11 ill 11 7
ObJrrlivc of IN, NII. 11rrdrl
onside sccmnu;ly ullcritw ,aider oppoumlfiy for nuuucipil c<cicinc
of home rule utivarive in pemmminr honor title title-. Ill act in .uc:r, nut
Icllictl 11y :,talc In;ul:un,n, the \LC model +11iffs respomibility fur tic-
ternimilig home rule poocrs mill functions from the judiciarJ�, ,dicl,c 1t
rests u17r7CT77AplIfo jlnrvisunts, m the state Icgisl:nure. •\bxm con,uru-
Atiorml urlel,isrtivc prollilo nrrn, then, 1nuo.nlclp.dilic+ :unhur red to exer.
IV cist•. home rule powers m.ty (-\erose them free from Judicial rt:,traint.'
p Mahle home role thus depends upc
on successful lubbvm!! Iry cities to
prcccnr rnacnnenl of anti -home rule Ic,tishlloll. -I ht .nlcor.urs of lite
R
NL(; nuulcl gvidcudy hl•licvc prrcroo„❑ of sorb n1c.Iw ccs it, be caster
than xcurimg f.ovorablc decitaons in the coutn. This t.uionalc.tlglarcntly
n•sn upon two prunary unproved .and perhaps 11111to,.11,1c g,snulptiuns:
Grsl, that inlprrin If :Ire un,curLablc and hake f.ldcd, .tn11 sound,
thath
t e st:ne Ictoisl.ture is a more coutpelcnt and trtt•.r,cut rwodian
of home rule porters than the ptliciary. :\ corollary pil. it. that
Icl;isi3tive control or dercrimmit ,i) Ill these Powers will allow l tearer
Ilesillility ut adjusnn” the vale-utunictp.d Ictal relmionship Such fic"
ihilir\• Is considered highly desimble in the present contest of s"Pilisn-
cared urban civlization and intricate p: sterns of loc:d fou nunental
uninla Whether provisions based un the \LC Model Willetlhe
foster home rule reutains to be seen, but it the Ic:1sr they rcthtrl
municipal excuse for imcrion afforded by Dillon's Kole."`
eon, iuni„,ta1 pm,wim, l...it e, ark nuv .it 1, a hour• title IIIV all
14. Although a
puaer, nut Inrhidtiro In Ihr W.Ite rmnliwti.n, or Lv the .tnrrnlarorc, du rc MAYat ill
eater iutlrlied limitation, on the .un Lunn- of Will a a'ira to I -pact ren.ill urtiinmces.
Srr, e.g., Simmer c. la„n.hip r,l 'J caned„ it \.J. NX, 5i2 51. +it .\.hl 761. 761-64
11'/h'/l; 11'.n!ncr a..11at nr \tun. l}nmril, :4 \ J. 467, rN1i, I i! 1.?d ."11, stiff 11')37).
I'nnher. the µlJuiur it,, at, i, rryrun.iL1¢ fur re .oh imt Iontliet' "em'" rn ,utr �utun•,
anti numicipal ordimntc, h, Iletennipmg ahrn rile ,tale let;i,lalnrr ha, preempted tla
umniulnl prrrn,gvi,r m legi,late in a paro,uhr arra. SIT note, I'' -"?t inlru R arrnm•
panting felt.
li. Pully ,%,are of the cariou. uv.,Loevr, inherent in Ihr \I I: drl r!hw never -
thele•.• beiiekine it re, he elnrly tilt nn..t Ileaihle approach to hnvl .ell trmmenl,
tit,-\lununa Conlon, iunal Coni conon adopted doe pnnciplr of chi, uud,1 in the 3771
I
Montilla Cnlntiuuiun. See .\lonnna Cunlmi,.iun on I.In'al Gocrrnmrnt, Local Go”.
Ila,. Itull. 1 H-17. Aug. Ifo, 1974,
l6. Uillwi s li tle +rilnllatc, that a no ni,ipal corpurauun ptmr.,ck ooh• Ihu,c pito or
rapre„Ic Granta•d, Uirh' implied
nr incident in the puurn r,prn,h' grunted,
rocntial to the accongrh,hmcor of the declaml 411CCII amt lnopn.r. of the corpora -
tum. All rra,anahle donut concerning the cai,renee n( a p",tor n to lie refulred
mnin,t rhe empolatinn Ste I J. Dion,;. \It \Ir IY4, CnR,oj%IIo\% k ?17 (ith ed. 1910-
I
H 1s111nt1 avu titin Itst uo-a'nu JV'd. 17:1
Polrtlenfe ill Ibc ImpellN I(fCJ
I hrattgh the \LC model rnuuuly .Ipl)c.O,N Inlnc popuhu Ih.m the
rnr(lrrio upulel," Hoare it djsa!Vvement :u to which model is preferable.
1'o -.rate has adojncal a stlictly bnpr)iu pruvlsiun since lltah did so in
I'M, but the fact That several slues barye recently adopted provisions
combining feature', Of burh NLC and imperio uoulcls evidences strong
sentiment in favor Of the imperio idea. These provisions express the
home rule grant in intperio language such :Is "nnnti6pal concerns, prop-
erty and government," and make: it subjecr n) state legislative suprem-
acy."(Municipal honl_e rule_ Icieiug Lon bisruric:tlly:.cuncucitl_1k di-.
rca ted solely to municipal aflmrs, it is iterhaps lugic:d and proper to drafr
pnivisions in the im ltrio style, but since such jiruvisiuns limit the e•ser-
c•ise of hume rule initiative ul the arca ref the grant, the allowable: scope
of home rule is sccminph' nor as Lruad as would Lc pcnuitrcd by pro-
niiuis Iciscl sr}icrly 6 clic NLC principle of municipal initiative -In A
a�iati nor forbidden."' wnle%%har lOgirl in.rsnmldl as the I.M_
peri,) idea seenn inbrrent in the cunccpr of hone title itself, provisions
which combine NLC and imperio features l&cly trill have the effect of
(it fearing the broad intent of NLC proponents to lessen the rule or in-
fltler.ce of the judiciary in home rule:. Such provisions nor only will
necessitate the definition of home rule powers and functions, :1 task
NLC proponents believe almost impossible, but also will require a reso-
lution of conflicts herwcen state and municipal governments arising front
disputed authority to exercise powers.
The influence of the NLC model nn recenrly adapted home rule
provisions, and the controversy concerning the relative merits of the
NLC and imperio models, invites their snldv and comparison. Although
it has now been issued fill- some 22 years, cite NLC concept has been the
17. See notes 8.11 copra & aeemrlleol) int( text
IN. See, e q.,,Ww. covsr, all. 7, 1 !2.
Iv, 'I hr NLC pnnriple is rnlhndaal I.y rhe• P•nowk.inia provision rhirlt empowers
lunm nite ray rn "r.rn'iw my l,"wrr or perform inv funennn our drniyd" hs. the
.lilt c"mutunou, I.y Its Lome ndc Jnrtrr w ' v ihr slate Ireidnure. I'slir.
9. 1 !. Simdarly, the Alaska constitution enq,ostm a hume rule city til "rserckc all
Icynlirke powrn ,or prohibord by Lor or It, churrer;' At ss. Cuvst. .0 1. X. s 11: the
New ,1lexico conuinniun emputsrn a home nl,e cuv m "t%er(ne all Io nlnise power•.
and perform all functions nor expressly dented by pcuerat law or charter," N.M.
Cussr. art, X. 1 6U, and the ,Montana cun.rmnun empossrr. a hume ndc city I,,
•'cvrmise any prover not prohibited Icy Ithe .rarei constitution. law, lir charr:•r;' .Vnv.
C,)svr. art. XL 1 6.
19751
subject of few
in a few scu(•s,
offer sufficient
as well as a con
visions based on
Although ad'
vision arttiquatt
phrased and be(
rule authority, I
constitudon:d (
reversal of fill(
home rule cities
provisions, and
state legislative
visions Irked or
and unexplaine(
rephrased chem
guage. The ma
taken partially
rule provisions.
ly, the meaning
this reason disco
the NLC mode'
any patticular j
20. Lack of judit
siuns baud on the
sible, though by r
require less judicial
21. Some srare o
actual cnntrovenin
ing decisions, have
visions. In Leaved.
(1971). the Suprem
laving the wmin¢ I
the ho me rule rswe
article I!. 1 5 Ithl
upon Kansas muni(
mnnred, -Fesv pent
really know' uhar'I
aunt in Karuas: S;
I rmpna'rn
red" L, the
Cu,n, all
,.'%co, IV all
X, i I[. the
,,nt you cis
r'm, N 11
vile ' its rn
--cr. lb'.I
I'I;i I ,It .Ir TAI I I I I N I lit I I
',uhlecr of IM 11110 fleto, j idicul tic(Isluns.'" Xunclheln•., decisuut5
in .1 few slain. r+pc Lilly \I:usa huutts, \ew ,\Icsicu, and .\ ash..I, may
oiler sufficient infM ''Aron to allow uanun•aluattun of the \IA: model
as \vcll ;is a "'11111.110+"11 sof it-, vi.ILdilY :Ind ctfectivencss with ember pro-
visiorn based on the iugrevin cunstnlct.
I'lo, NI.0 I\Innt . \vet.eieu
Although :Id%"Utcs of the Nil model nr:l.y cunsuler an imperlo pro-
vision anO,IU.1tcd an'I nlmolkable hec:11 sc of rhe I:111"kinve in which it is
phrased and because of the manner in svluch it atrcnlprs to confer home
rule authority, the NLC mmid itself presents winos practical, as well is
e'otstittltionl or Icr:d, difliculnes. Its nun, si'{nificatu aspects are its
venal of Udlon's Rule, its confcrrd of nvnt procedural functions upon
home rule chic+, a power-
aenerally accorded municipalities under imperio
prooisions, mi it+subjection of must anhstantive house role powers to
stale lcislanvc runO'ol, the ahunce (If judicial inrerpretatioll u( pro-
visi'nts ba+cd on Iltc \I.(: tuodcl lids left much of thv c'altccpt nncicar
Mid unexplained.'" \lust stares which h.Ive adnp;ed portions of it have
rephrased thein in more mulitiunal and perhaps more nmallim!fill hil.
r wyl:. 'File majority of pruvisintu adopted in recent years arc hYhrids,
rd;cn pani:IIIY fnnu the VI.(: utndrl :111d partially foot csl+ling home
Odie provisions. Since the phrascolottv of similar provisions dill'm gmir-
ly, rhe me:utin., of hcri e rule accurdlltgly v:lries front s"te ler sone. Por
this reason discussnm, it, this article, of the various major provisions of
the NLC tuolel cannot accurately describe home rule as it functions in
3111• particular jurisdiction. Its nr_aninG in -un_ ,riven state must neces-
N. Lack of indirial intcgarcatiun nay he explained in parr Ly the fart Jtar provi.
sium Laxed un the NLG model have horn adopted only eery rccentiv. It is also pos-
,ILIa Ihnugh IN an mean, certain, that prncisfuns Lased on the NLC nmdel may
re'luiru I" ludieial inter preretian than imfle in prm'isiun,.
21. Some note cuuus have adhered ut a pnntary rale confined n' file dccisinn of
actual ronvovar+frs, and, avoiding constiturixanal :ring
whenever pu.sibie in reach•
indcci,ions, hast dune little n' explain the mca ring of eonsfitntional hmne role pro•
LI Lea,ennrt It (:full Owners A,�n v. Axchisun. 7118 Ran 318. i'a! I1-211 IBt
I.
1197U, the Supre'ne Court of Ramos, findnrg no eonff¢t between a ,rne suvne tcgu
I.mng the setting of alcohnl and a mare restnetwc city ordinance, de,.Iinnl to reach
dw home rule mile. 'Ihe court mid, "Lhi, is not file uccaion for a tra,i,c curntruino,
.u,irle 12. 1 S Id,, home rude pnni,iunl and defining file po-en lwsrnwrd thereby
ul,on R.'n.as 11a1 ,icip2hom' Id. at I:I, aol Ph1 at 187. One rccaa vdhor ler, cam-
uenu•d, "Few prnple r, en after a du:adc III exp<riena ander Article L, Secdon S
,,ally know aha 'hums rule' means in Ra'nn" Clark, Staff Control ul It. , Cinvrrn•
in Ranfa,' Special Lreidafion and lh'mr Rule, -'1! RAN. L. Rrv. 411 (1912).
IU v n 1.11%1 lNn %I ,10 i 111 hr.vn,ly jVol. 17:1
swily derive Ilam uucrprctauous nl it, home rule scheme by the state
judiciary.
The NUC 16nar Rule (iron/
In making the haute rule grim tier \LC mudel culpueers a charter
(hmuc title) city to esercise any pouv'r or perforin any function which
the legislature has power to devolve upon a nun-humc rule city, and
which is not denied to that city by its ch:lrrer or by general law. Several
questions are raised by rhe language and the manner in which the grant
is smucd." Firs[, although the word "devolve," adopted only in the
North Dakota provision'" obviously means "to transfer power or au-
thority in," its inclusion in a humc n ulc provision secuu somewhat inap-
propriate. According ut an early opininn of the Supreme Court of
California, "inslanccsof jlhel appropli.tre use lof "devolve"I are found
when speaking of the succession of cst:ucs upon death, or upon a change
of official inc'untbcots; also in proceedings in bankruptcy or insolvency,
whcrcbY the act or upenniun of law the Orate of the bankrupt devolves
upon his assignee. 'f he United SMITS Constintlion uses the word
"duvolve" ret describe the transfer of powers front the prt'sident to the
Vice president." While its use in a home rule provision is perhaps a
trivial matter and evidently has M Ic)!al slgtllhc3l]( ', it is slnhlllltted lit:[[
"grant," "dcleg:ue," tor "confer" would have been more meaningful.
Second, as Dean Fordham has admitted, it is not known precisely
what powers the legislature may devolve upon a non -home rude city."
Such powers arc likely broad, but they nl.Y nor be unlimited', It may
be that because of the Incal or municipal idea inherent in the concept of
home rule, only local or municipal powers may be conferred. That in-
terpretation would he tantamount to reading the imperio concept into
the NIX model, since while home rule may be difficult to define, it
usually does not encompass the exercise of state powers by hurdle rule
12. The Ixovition nuking the Fran[ it wr 0111 ar d¢ text at'amlpmlpinl! note 1 t Inprn.
21.:\'.fl Cowa. art. VI, t I Irl. '
24, 1'randwo v. Agnirre, 94 Cal. Ihn, Ihi• !9 11. 495. 497 011421 Ser .lhn 14aLenrk c.
\lm,tll, 29 ,\Innr. U. 1t, 7411.64.66 WAI11.
M U.S. Co,,T. arc'. S I, rl. 6.
26, Fnrdhmn, I.nntl Goternmem in rl•o l.�n;n .Schou[ ni '/'!•nrlt, h 1111. I. It n.
f.67, 676 (1951),
27, Ir ha+ keen held char a vatr Irgi+lin, tc rannor dvlr,.tarc lndutriry I I't ricr comm
n. decide .itne%ation rne1. S'rr Cirl• of I;a rr,npn.it r. Prnter County, K6 \.11''d lT
(\ D. 1969).
H
,etc
,ter
,Inch
I:1d
:vcrlI
,VC151 I v
cin .
It tl'. 1\'
cept Uf
kat In -
!pr Illtn
cline, it
ole [tile
I{,aper
141,Lo. I,
u L. Its
tier mars
%V ad I—
II
\li •.n.I i'U 1111,11 Ill � I.
rr;I
indeed, til::\I:uh,t suns \cse .\Iccico tiuprelie (.1,uris hate al-
rrady imported (Ile st:ltc- Iaamlclpal dirhonnm inru their Joni: rule pro-
visions, prnvisnnls %CI V s1nu611 ut principle w tkr \1 C luodel. Ucsplic
Iles Lut,!Itl;,,c "I tllc \Li,l:a plu•nswu, winch cl po\tcls .1 house rule
Los nufl6 or cu•; In L'SCrt. I'.l' .III Icj,i)lative poo Cl not p�'�hlhited Ly I1\v
w r6.uiu. rhe :\Llsl:a const slid Ile❑ the 1)1,wcr of a IIIIIIIC rule nnlntu-
p.Juv to en(rnL c .Lal nnLn.lme x%hich ronlhet%%t ith a sl.ltc slanlic depends
f upon %Ovedicr the nilmr tr! slated a n( stele \eidc of Iuc.J concern11
i-I hat court lied earlier .Idopled what it t allcd the "local acuvrcs ode,
thick was vunrapy rile old stat: versus -local rest used Lal iuTpeua st:ucs
n. resolve cnnllicts ket\tccn %talc statute•. and municip:d urdinances.'n
ty
The \ew 1\Icsico hunts rule powlsion slipul:nes that •'I al nun IlcrforIl
"Ilich adopts.[ charter ul.ly exercise Al l gisljtike powers, :in r1^,torso
ail (unctions nos cs wAs," denied kv
lOn,Lt ,t :. IVilsu+rI. the Supreme Court of \res• \Icelcn upheld the
right of the city of Ailmijucoluc n, Icvv utcrc:l cues c and \valet
Nervi:: ehar);n on rile !!round that ul.utagetllcol of sc\c,ll!e .ted m.ltcr
(:u'ilitics watt local in character, I Ile clIll found the terns "^cncrai
. `N. It seenit lundl,al al fh." uhdc weir pl u. rano.. wch .Is Ihmr of :\tasl.l mA .
\Ir n1 u, raprnslr +ufr "Ina wuprn IuLal .rl(!:m enuw.ui• at tile" purpaa.
ac 1
+ .Ihb: snfe poorn, n"t Inrluddut Lc (111 .um Iclristanur. III"' p1„u.0 uls nnl'Iv ¢rear
rhe)' fa"Qur aull' II, I..'n,r ndr uurs m sxl rrfsr all p"t. ufeluJlnl: prnun -
• fauh in file .rare lel;nlalurc''..."nlpOL11ticiahi uer "tntiunitin, e11'u1r irrrin'nu`.r ntt aIl"w,
b one nt elate af{airs. ISv unnpa. I {
h��iur telt 11M, w as upon rule n,antfs unlit (unhidden he tore Ian. See n'ars IIIN I!
inI ,,, N arca"lpam mfr text.
27. \laraulcv c. I0!dehl .InJ, 1'+I 11.!J l ill, L" I:\las.
r! III. I!1 1.\I1. 1'a7u 1. m
Is lite (.h"gach likes :\+:e r.bnr.,l,nld)slut deny I,hul!a1)i a pn mn is-
it
u
a. huh it , Is laid 1hal file , In of Al”ilunl" 1 cune,l a cetulil .m' nl Imb!ie
ratee,l in %cr%,c" sell the cin' limits after Chlmadl hal
nh
colo alien¢ and uece";te from tilt ante puhli, sen ire eonuui,won, Tho 'I", s"'.11 W3%
tbt"t/ell int Sharp•
110,,;e lose
its L.rl. f1.11 1f 7,x1177;1 Sharp alnumde'l IhattlIs�ls 10111"g the
inrp; ri" dot tone into the :\laska prm"i"n. the tin peen ie (bun of :\h+ka aatr,l Ile court
would epprarrLufrot inj%I110idtIf III, ,Isf1111 it Ilad 6erntaall....tiltnl ealrlierlleSee11"III-' M "Ifs<"e
acenn'Inua M-5 lett. .fila L"o"on a Mate
lilt :11.nka court .uh.rvlutnllt 11l'L11101 a Lass """ltrha•'i,+o1 umitc ollr .. See
%none and a uumicilul urdinanct will"gut use, uml'
1+7 P1.1 17 ( \las. 17711 In n, upmunl the roan Malydi nl'rl,r flue
f191efy," t, State. In uLlhlnnn.
ut• deer%, from Alaska'+ lunstn'rtiunal Its,,, on,1,s 1. one of
Ir."1,1 n,na1 l
It"s %,le1t, au 'Iaricl,l (:mm�1,r rrllilt usd III, to l,p"r alllc'11n,r'll Merin itird
Ina sono"nn'. 'q I'n
roil IJ at aJ (qU.
II. N\I Co I'- an. \.
"ss \I W. I.'i 1'!,I N76 111071,
12 ss n l t6\1 t•,n ,I Nit) I \is ul.vl v I \'I d. 17:1
I:nv" as sl.nyd in Ihr Im,vc,i'm Io, [inIn".I Low 111.11 .Illlthcs p(.ncrally
rhronrllorlt the vaso(., sir i, of 1% lilt- I,fit( cnt is eonuasicd if. 'local'
or'numILtIm V 1.1toi I In c(,urr 1,"'Led is rbc intc•tprermIrons of iinperio
provishnts by miler watt• coon•,, :till :Idoptcd the 0irt-gon rule that
"'Iis, lhile a I;cnrt:d late wp(Isvdcs .I municipal charter o1 ordinance in
conflict ttic rew'itII, ... rhe subject tuner of the guncraI legislative enact-
Incnl moat pert.lin u, chase Illint;s of genual concern to the people of
the star(.. A Law gcucral in farm eannm ... deprive cities of the. right to
It•gislate on purely loyal illairs I,crtuane to the purposes fill .vII01I the
city w:ts incorporated. 'I lilts despite the plain language of the New
Alcaiaa provision cut1tiwcrin`; the state lelodaturc Ili deny :Ihtivcthrr
I( Ionic rule cities the right ut cs(.ri ix• all Ie,Iislaiive pn%y(-I% and it) Iter-
(ono all functions, the rout Iius I ffccrivcly c\tingoitlu•il Iftar Puwcr-
tvhcrc fwzctions and puwev, :tic local or mmmicipal in' (.tetramer. This
ficisunilClTTinl�nSic uj)fni the wort the risk of cl..m}y'mg I;uyernnacntal
powrn and functions lilt(, suic and nuuticip:d categories.'' I be possibil-
ity of :I rcalbrlr, of the st:ec-nonocipal dichotomy into ahc rcccntly
adopted .Missouri provision h.ls been raised,"" and some drrnion, of tilt -
Supreme Judicial Court of Massachusetts indican that that court (.%(.nat-
ally may move in that direction.:'' Such an interpretation would place
It, LL :n 521, S?S P_'d at H81. I he eon rt, tont rtrq lailyd to dilinram ul out in alop".
rot diainctiun bo,mvem a law of role applicariun and .t law of surn.1111 raumai, II.
Aldivv, mprn note h at- 616-17. The problem enuld have been avoid ... I Lott the run•
stitutiun:il provirinn inelf defined "general la,,,"
Si. H6 N.M. :it 522, 52i P.2h11 :n He?, gtrutinq Ciry of Portland e. 1Vrh'h, I Si a Sri 286,
196, 59 1! 2d 219, 212 (1186).
)t. In its upiniun the court it,,, nosiest rh•! plime "our eapre%0%. Jrmn1" and rook it
"til mean that some evpra•w st.Itrnent of thr :Imhnrity sir power of
nul,r br rnn-
uined in ... general ... sir uthrn6w no liminrinn mien" 86 NAI. at 521 12, S25
Ptd it HSI -H2. 'I Ili, view is similar of that of Anriau..See note 11 iolr.i S arrumpany.
ing text. Intphrd preemption w.n nor invlilvrd in ihi, rase, nor did du• roots indicate
an xwuenrs, of the ditficulrim involved in thr preemption Iluestinn.
Apodrra illnoran•s nor dilbrulry rut ns hi,e in i,uidinq die inll,.rnsa oI rirlier
milimn dei i,inns. front rbc gnninn in rhi, ea,n it appears that the No Alexis n court
wa•. wholly Int f3a,i1,1r with the therm• undrrlvine the NLC nudel.
15 .Srr i nn.mrrn. Smie.Lural Conflux Under rl•o Now Mimmri lints Rod, 4menA-
rnrrrr, 17 \In 1.. Illy. 677, e,4? 117721. Iba, fir, thr .\Irnnnri prrsvisinn ba, not been
I,tiearrd extrn,icely. N'ithuus referring too ;t. a \Im.,sort (.onto of appcab drri,iun it,.
solving cnlmry [,nine ode based on the irnp: ria ducoine esnbli,hrd Char i rounn hum,
tide charter prnvi,inn to faring if, a private or loot noanrr prerailyd -%, ,, „mfln,inv
,tan: statute. Stare re ref. St. Louis County v. Cimpbell, 498 SAV.2d hit run. (.1. app.
1771). ,ui„auri nay he unignc in basin, on ,...pain prneis; nn for roreny borne rule
and a legisl.arive iuprenocv provision for ninnieipil home rile.
37. Cf. Opininn of the Inst ices. 15 If \lass. ;7i. ?ro N r..?1l 547 (1964 r. Ilet ua y. Sre re-
Lary of stir Comm. 28H N.r.?d 787 f\I.n, 14'L. The finr drri,iun found a matter
of
19751
States with prtn
intent as those t
model sought tc
The absence
in provisions It;
Alaska, New :\I
lent by obfuscal
authority to em
tion of home rt
answer. One sol
or the imperio c
alters or defeats
Another admin
on home rule it
contained a pro
Char horne r1;le:
such a code of
provision nanv r
mens of a fully
in older stare; w
where codiEcari
and mighrencot:
ing loss of manic
conflict betit-cer
render the.. code
covered by a prupus
legislation; the sent
(,tined to invoke a
to Ix inlpcom wblr -
SH. Such interpret
Office of the t.\bsl
Aug. ILP,2, at I E.
(Itc,carch .11cmnrm
Idaho). 'this indicia
Ala,W, his t2i„•n til,
au,l California. r.om
I'H Coln 46;. 4
1
5A-
r .,.,.�.. (JCI . a
17, I)nft V 5 r),
.'i. roil 6 11,,, dr.af
artier, 17 \Ia. L. Iia s,
41. I'nlhawine, the
'nI`It n•v, 111 `1 1011 13
IMOP \I.l IA-!, I In nmrh'iu ...It In pl rd¢'
.unrlll .r,lln„t ahh ,ulJ„ Jnr Ill 'u,11 11s, a p",Ilnro Ir authors 01 lin
nrLt I,. I, A P ;,I
,kI �d a ••In r .11, MAP(', u uI III, s
AI ( u�'�dl I, r. '•1111 a
in pnr.raolls haul nn. ••1 •'iuuLlr to, d". AL(. un�Jrl, •.,uh r. Ihlru of
I A I:i,.I, AI:Al .All":II U. A1" IIt111-I, .II -1111(111M I•..11mi, host's :I 11111( till Irlob-
I; nI l” I hLucaunq the lou• of drurmc1lw11 hcnctrn MAL .Ind Inunlcllr.11
" .0;thnri;y t.r cn•rci•.c pr•.1cn. hlu+ ITT All It it 11.1. csolcll .inrr Ihr ❑tccp-
nrm of hook Tule itself, .Ind im.. ncccr rcrclvud an cnlirely sdidiaen rcy
untur (Lu'::olulion I, ludlrial rc:Idi1„q 111 Ihr stair-unuuclp;ll rlil.hnnnuy'
or rhr urprliu collUVI)l 1111” \U ,Iylju p10u,Ions, hal % ich Till .rilltro:Ich
ltcl> nr dc(r.uy the intent and purp0s( of Ili,- en.n'prs',f the \'I.(: uu,dcl.
A Mother A,rlloliml loil!III III• the V11.10111' [it 0( 11 pl.11c ,n'!c of I,'•d lit'llnns
rrn hrnnc Ildr rniu.uhr I ht I'1Ir
All ]IT \'r 1v Y"ll, Slur Gnr.nlolion
rrnrt.nnrtl .I plocl,n.n h,r,crl lit A.111 nn Ihr \LC uun!rl :Ind plovillcd
,I'll home lit!(IIUlllrIN I .11161 he 1 v.Ire.rd only du ol., the ptriod lvhcrt
.Iirh a col lr 0f I ( I I
rll l n',IN It as ul ,ffrrt 1p\ll huu!'h Ihr \ud rnat: I,
pin•,r.n-11 tris Iuplcxnt the htsI Ily,oac!1, Ila' prclmr.uunr
u,rnl .r( .1 fully el(c(ncl. code Plcsrnts su'nlhrant dilht.ulrirs, t.prrully
I.• ��I�6 r.ruts VVIIII rorl,iderahlc •.talttolA, I:Isv !,rnrruin!( 11111111t ip.dttcs,
ahrn• t'rnhheulr,❑ or'�dd nctesiLur .I ''Icat dcel n( lion• an,l r\prIlse
Ind oiighr encounter sthttanli:d npp"sirloo from munu'11ed ol!ir elk (car
inq Ins of nrtuticip:d nun pill toy."' Further, IcCislalive ivahilty it. (on•.cc
eonllier hrt%%vcn a code and legislation Loth prewnl .11111 future
ender tile Inde ineffective a tinlcs.11 \eccrthcicss, enarnnlrnl of .l rode
„n,r..l ! , �� pl q'�^rJ Iv, 'r' Lr lnlfirirnrlca .um tuncern and lit,uc
dure Ill mn rn Mar
Irenl.n i'm, Ih, +round h''n LeJ it".elle, mmi"', 111 .1 .Llturr "1",1,r!^
lepre,eutvuvll. an,l Ih,n (ouch it
rnnr,l n' irui6r I muni, yr.J im rre.n fpnqumi,unl
rn Lr iugllq rni,v file ,plc rll Irul,larmn.
1N. �urh iulrl urradom ertt' (ure.een, Lnoe,rr Sr,• V..mlandinCha w. mpm nine I'.
1111iIc n( the \I.r,Aal Cru, crnuL 11..rn; Hine u. �ll.nYa, .Ill,., Ii'r,I
1(1111, \lunirqul I!ume It'. (iwJ..linc� (nr hlah,r, ...... .rt it
x
fli-',(d' \I.ne.nndull, pulrh,Lr,I he Itnlrau u( Inlr lrni ulc'Ilmwi,im„'I•.''h It. u(
LI t•n, Ih., indu,ial imct Lr rl.ra I'm u( Ir!!iJ.ynr ..
11i1.i. h.r, ••n'n than nnla lr rhr .atm Imggl,l,r „Ihr nu(�rr nr plm nun, .'1 G'lu tont
(""'j. Ile urrrr, '9 Sfl iupur A w,rnupun... C rc,r :. itl. \'•Ir c. I'�r�111r•,
1 I f ..L. I'.• 1!417, I44 11 "1 I:IN• 1!ui 11.171) •'^d I I I I II v, I .Ihlur nor 1l.nul lulu'
f .u' , f'nnn,'n, It (:.I \pp. hl NK, 1'11. IIs ,I I(!," Ali. tti 11.171.,
{a IT, it \.1. (:'not. ul XI, i 'Illi, p -1111-111",m Ihr \ 1 I inir,, til pt ". Ir14: at
n•I Ilei. .h ih „h. tri ,'.,I in r ,I,r'nd'nn r+nr
(.I, (,,,".,A 1, Sort-I.nr.d 1'111111"11 I; rr•1., rhr ,A'�-.: Ill..'.un ll., n.. 1f.''. I
e.,,,, 17 \In. I. It. nil. ,,;.K4 1147.'1. f
\•:u ' f nr '( \m lv �hnn•. Ir' I'_d
1.I I- III 1.%x1 %Nu tl tity I \te ur:vrl to [ Vol. 17:1
appc;lrs desjr.lhle cern Ihutn"'h it Inas Leer prove• defcetiec and retluiie
amcndinent, failure or neglect ,II the lime Irgislanlre set ,Iraw a clear
line bcutvren state :uul nnmicipal authority sea exercise porters could
pave the way for abuse of inunicip.d inoiotive and resldt in :I disruption
of state-unmicip;d relations. Thr \I.(; repurr itself is somewhat incon-
sistent in this arca, in.lsmuch as the text of rhe model does not contain
the word "cypssssly'' ye( in tile c::p!n!!.::ory comment it is stated that a
hou)c rule city may exercise ;lit), appropriate power or funcrion unless
e.rpresrly limited by charter or general slatine.'a The term "appropriate
power or function" is left undefined, lnrt in view of the home rule grant
supplied in the model, it apparenrly means any power or foncuon which
the state le,dslamre has authority to (let -live upon a non -horse rule city.
As earlier noted, the extent of a state Iegislanlre's authority ro devolve
power upon such .I city remains judicially undercrinined."
Cunstiturion:d provisions based on the \I.(: noulel evidence an atcarc-
ness thou the \LC text does not c•m imin the word '•expressly." :\ It hough
the\cw Nicxirn and Illinois provisions do include• the term ser its equty-
olent," it is absent from other reernth' adopred provisions. The inclu-
sion tar omission of rhe term has considerable hearing un cases involving
%rate -versus -municipal authority ro exercise powers, inasmuch as there
exists aurhoriry for the proposition Char, absent an expressed le!,rislarive
prohibition, nunlicipal Mone rule enactments should he judic•i.dly up-
held!, Regardless of whether ;I provision specifics rhe manner of le_;jsla-
IIS (Alas. 1970), Are nore 70 nrpra, the Aloka municipal rude sea, rtvrittrn and re.
adopted. The restrictions intpmed un nm16I;plIiri,% are set out in AIISN% Ster.,
5 19.1;.1IN) (1977 & Supp. 1774).
4.'. Uean Fordham ha. reirrnrrd the pmaion n( the esplan.aun' nnnmrnr. .5're Ford-
4?.
I.nr.d (iclvewment in the Larger Srb,"m of Thing,, v Veva. I.. Ibe, A67, 676
(1955); Fordham, ldnrue Ilyde-14.tt/I dlndel..14 Vtr. .lieu'. Itiv. 117, 110 (195i I.
il, See note 26 mpra N acuunp,tm•in1( tett. 5 601. For Jnrus,iun u( tile44. .Ser NA; (:.,,,T. art. X, f 61), lis. ('uvvr. arr. \'ll.
Illinois pretnifyuon pnn inion, sec 114 111' t! int r,s h nrnmpanvine, Irsr.
45. See generally 1 C. Aso tr w, W, 1, ural, (.net+,a conv Lett. 1 t.11, et 4-125 n,
5.126 (1975). The approach to the runlplee lit jdCni if prernlprinn olfercd by tenth
Awirau anti drafters of ,hc \L(: model appear, 1'. In. mo simplistic. 1'i doom.1,a hhome
r•d,. unit ro Jn whvrarr i•. nuI rgorv.h (or bidd,:n ly rhe torr Itg,.
often lend if, a satisfmtnr)• ronin rano III rhe prcrmpt5nn i„see. See mar, IG tl infra
N, 2manp2nying text. "the Sulttrrnr Conry of .\13,1,2 has derlincd rex dual ++4th this
poJJem as one of prumptinn he nesting it nuher a, imnhou n•a,bn6e, of conflict
Immeen a ,tore stature and muntripul ordlnance. See. r.g.,
Nlaranle% a. Ihldehnnd,
491 p.2d L'0 (\le,. 11171); Chugach flee. A,,n t•. Gw of Anchone,- 476 . —11 IIS,
121 (Alas. 1970); P.ubey v. City 'If Favhan1,,, its P.2.1 170, 174 t \la,. I'rL'rr 'I he pre•
emption doctrine his IN•en widely tippled ly the Supreme Court of Cahfornta, Ser,
e.g., In re Lane, 58 Cal. 2d 9). 571 F`d N97, !t Cal. liptr. NO (19621. ArcortF-19 w
a
I
lice proscription. t
scribe the horny r
nlatic judicial sant
Shuler, in which 11'
of the larger cont
permitted tit cn.tct
beyond their tcrrj
matters requiring
tension bccvvecn sr
legislative prohibit
parr of the suite le
tore is presunted t
actual experience c
edge. Moreover, i
isl ntr : w and icipa
isting state law or
place "an onworra
coloplisll very lit[
menr that the legi
tended to linlir th
tvas not within its
should enac•r i.iws
orae California rnvit I
firlJ d(rrrine") nsnn•
latiun of .a giarn subjt
rnrrrcd h)• ante Ivoisl
App. 2d ea. 75, 76 Cal.
Ori. "f here is tvithii
"rdinmces adverse to
ar unable to prrdudt
tenor of the state's i
Ordinances, 72 11 tnv. I
47. .Srq e.y,., Vi113rt
\.1 2,1921.9" tt9its
me, N.E. 110, 371 119”
IN. See, e.y,., Sontm,
(196')1; In ter 11n616c
49. .See, r.N.. („uh
porch. fl 1,f. 1/11. 1
Ile,, V J. Super. 7'9.:
•.Int legislative uunw
So. Ser note 41 arm
SL C!o.....4, I'L,.
tai, .oncutring opiniu
A hnmr rule
I
Is
\I. ,.P II'\I IIUVI 1)l I I
I":\I
s
A 11,r lln..rnlniuo. Ihr n,,,inl or Lulu,r nl .1 ,I.nc Ir,,•,isl.uuI u' rnruul-
'; ,L:riLc the bnulc ndc cit ullnrut> shunhl n1)I nrcr„arily t,'11wn' .uuu-
x
n.anc ju0iee11 s.muum of unulieipal arnom. I here :Ire +ume eanu -
a
uul inlcn•,ts
x1,1;1( C, 111 'a hick the IudlCi,uy n�l” .Irl n, lnlncu the 11"ll" .
n( thr I:tr�;rr I�olninunll\. IIIc 11'un' rule rne5 c.ln he neither
peruultcd nI coact ordIIuII, cs having Not nl.uulal inlp:Ict on citItell, II%iilg
hv\.,ITI Ihctr Iulrnuri,ll horde,,,° nor .11If, .%L,l II cnaet nldmanen 1111
Twill (I rc,luirill.- uui(on❑ +tate rrnui.Itil'n.' Further, the idea that the
u•n•,i1)n bencecn stale an41 nwllj61)31 inlc:esn e.m Ile rc+uhe,l by c\press
Ic i5lalice llrultihuloll Ili es11n1e+11)41IJrc.Ir \vj5.lunl :uul hilo\vledt,c on the
I,.trl of the vau• h,,isl:nun•, Ihspitc ry,h,:i,11 doolInv 111.11 a s1.me Ic1',isla-
nlrc i5 presuulcd I1) h.I\c L'n1)\clydl,c of its own previous rnacrincnts,'''
entaI speriencr Jcunnlsu,Ites a not urtcolu.;lo11 ah%clu c of surh hno\el-
rdVc. \lurcuvcr, a is c\cccdiot0\ ,Whcait, i( nut jlupowide, fol .t Ici,-
r,l:.;urc 10 anlic!i,ate c'm.I0etc1} the uopul .4('.�Ich ruactulrnl "111,11cs-
i5u1)�, "a me law and un nnmicilMl 1)rdul.uu_cs."' titatin� 111:11 n \vuuld
III ec ";n onu'.u;a;lled hurtle❑ upon Ihr -,tire Icgnlatmrc and would ac-
-
c-
•;clv ht;lc." the Suprcnu (.ourt of :\f:I\I(.1 rciclriilisllluum^in
n1cn1 that the Ici5lanuc should l.lbcl dell plcce 4d sratc Ic,�
rented to limit the immer of h'nne rule Cities; the court (111111 r s.1id it
\v.1) not Nt irhin itsprovin(•c n) specify Tile form in \\ hirlt the Ict islaalre
\Itlum.,h highly dc•,uable :1110 perhaps nc cess rV,
5hou1,1 enact la\\s. .
nor Ctillnom roar, d'r let", "ln rempnun, (al.0 ,.nurlin.r, rallrJ 'urruppl„n n( the
Ii, LI d.+a ri m..•l 'nr,1n, duo ",vhur thr Irp1.Ln.Ir Li, adop, r.l a ., hcu¢ for tlu• rn;m
l mon ,d re
., 1:icrn ,nbjc,t. loo al legidau,r onnr..1 4„rr,,"(e"nvP114 San I)icy71'nh1w. 271, hal.
o,rn•d Iq' ,utc In;i,la l ion ,a,,,.' All -Ili"' ' Il.un'
4lily, 71. 76(. al. Rine 5111, S16 WWI).
fir. •'I het, n wilhm a nn.nn.pahl, , I„dmrJ p1"•,nm t e 4h,v14 doe run m.rnlhrig
ril
'n,hn.u¢v, x'I,enc to the 4nlere,t 1)l Ihr e1.ne ill. I. .'lit 1)r i,dm�lnnlyr u,.ulahlr 1pro-
nr n..aLle I„ Inc[I^.dr In4micil',\ure.u� iug6rO Urn:een .1 .rte Sralute, and llnninpal
n,Im „( thr ,rvc'a intcu'st •• 77 (1959)
ir vu ,•,, 7,- Il,vv L. Ill,' 711,7
. Wrf e.e., Vdla,+e of Knchwnntl V. 'It' At .d I.lecnuns, 1.57 Ohio Sr t6n, 171.
X7.
\.L -',J '/-'1, 4't rOil” : (:i4v al It,, Urpan4l,cnt u(Ilcahh. L'll (Thin til. -Ile.., i.'21.7.
1!! \.I 171), 171 11'/Pa) 9f I, 1t1 .\.'d 761. 7/,1-M
r.q, S,.nu'x•r v. I'navn,h.14 al ., CIranrrL, it ISX, 171M Ill A..'41 ,ll. 71'1 il'MI).
I \ l
he rr I'uld.r tiro'. glee. V fL4 S II 4F, (:t .\It,, p,e.4I 1.4 r,rer v.
\\'1)d, IXI S.1\'.'d P.H. I'
1'ur, h, it \'.f. 167, 17 i, 144) A'' -d IHN, 191 fl,v),-(uwn,hip 1)l l;hc,4cr , I'.uuc high
Super.'").'f7, 'HI A.M 911, HIS (1'+711. lilt pndgrltn enecnd, rc.l Lv high
,4am Icvi,latirr tumnvcr are diaou,sr,l At nnre MI 1)d r1) h m'nnnpao}'�n6 1p�'
ql. S.e onic ll vIrl, h irunnpm,in V, te,t
SI. (.hu¢nh I.!rr.:Nin v. fain' 176 I^J IIS. 1111 1.\I (:4mmrcrJ
I ., ,,i.: ,rrine npm1) ion ra suh,agnenr dr[4,i4•n by thr ,anr Bunn. l...11 w dehnr
e
:\ gun.. r•dr rnnrepr uhi[4 rrlir, Dole nn ry•rns prnhihinnl
16 s%111t.4V1 aNlj %tsar% Iaw ur.vo.w IVtol. 17:1
a state-01.1ttell cod'. of ICstnctions oil hook ode uumicip•duics may not
prove entirely +arisiactory by revon of this %.title inability to foresee the
furure impact of Itgislatiun. Of tomse, judicial decisions call always
trigger corrective action by the Icl;islanue.
During the bort period of consunuiun,d home rule it, Illinois, the
Illinois General Assembly has anenipmed m indicate its intent m preempt
powers otherwise secured to home rule cities. '['his amstirutiomily-
required legislative procedure, thou, -h at times raising queatiuns concern-
ing proper labeling of bills, has apparently worked satisfactorily." Obvi-
ously, in these and in other states questions of stare- Inunicipal c(ntflict or
state preemptions will continually arise, and their only resolution appears
to lie with the judiciary acting nn an a(I hoc basis.
.State linartmoit uJ Private La Governing Civil Relatiwnbipt
Another troublesome :speer of rhe NL(,' model, contained in the same
section .0 the home rule brant, is rhe stipulation that, "I t This devolution
of power docs not include the power to enact prix :ire or civil law govern-
ing civil relationships except as an nicidenr to :In exercise of an indc-
pendenr municipal power." " •l his provision, Iill;dy considcred a neces-
sary limituion of the broad grant of authority, apparently including the
-- the scope of lor3l power presupposes a degree of Iegitlaove (uresighr and
dnftsnan,hip andiry which is vnniplecly unrealistic.
'these who, m5vucue that the conflict between suones and wmlinances
should he resolved by simply holding in favor of hurne ndc in all imunces
where the legislature has not stated an exprm prohibitinn are .,eking an
illusionary. un,vnrkable sulurion to a problem which is quite, cumplrx :mJ
which is, like "any things in mottern life, not susceptible to lie, hien by
more slogans o,r mechanical formulae.
Jefferson v. Sure. 527 P.2d 37, 45-46 (Ala.. I97-4) (concurring upininn). .
52. 'File Illinois combustion contains a ren' complex prcanplinn pniustnn, not yes
entirely judicially interpreted. By a three-fifths majority car of cash hnuso, the gen.
eral a%,enobly may deny to home ole counties it cities the right it, c«rciw a pnwer
1101 exercised by the sate A threr-fifths nutjurity vire in sad, hour is .dsu required
to deny or linsit taxing p0%vcrs, other than (hill, spn'ificall)' acco"'" or lunitrd by
the annlnminn. General lasts of sutewilr concern may lir passed Iry a simple nuiar-
i1y we 4 cath Imu.r and will pr"Itibin lo, al rnuunent ,,I n.linan,., bearing upon
the subjrct muter of the legisluion. Iscepl %,here %perifinlly limited by Ilse General
awembh. hnme rule unlit roy c%crci,c powers ennevrrendv with the salt. In sum -
nary, almost any arca can In preempted by the state legisa(urc, busthe three fifths
Voting requirement makes preemption of psn.rn not exrtci%rd by the stir` :uul using
powers dilficulr. See In.. Cusv. art. %'II, I', 6(G) -(i). See apo Carle, Illinois flint Rod,'
in Pertpeerive, in Hour. Rerr Ie ILLIson 14 (S. Cult S s. Gov` nl%. 1471) lhmkground
paper prepared (err the Illinni% A%semhl'v nn Itnme Rule held April r•'7, 11,74),
51. NI.C, .MIoul:e COsnrrmu
nv. PRa%HIa4%, mpn note 5, $ 4 at 17.
r
J
i
y
7,
11175
police power, has
Luuisiand,"and
ware," Geor,-u,:.
subject of soma
report, is to pmt
mein." Accot
not want to devl
enact private law
M city would be
of a number of in
necessarily bears
This provision
Judicial Courr of
ruled that absent
rent control ordi
the Massachusur
power upon est(
operate to inhibi
concerning the i1
tionships max' fo
desired police per
tion of Dillon's I
54. Njv,5. Cm•r. a
55. 1.%. Coss`, art
lute shall never Lc a'
56. N.MI. C(I'll- :
,he N>II, .Model Sri
57. tows Cron: As
58. Da. Com: Ar
52 G %. Cant AN v
60, \Imo, I(rv. G
61. \Ir,.Uoo(t.(
62. better from J,
61. Marshal Hous
(1470). The 131111-
... lnic.pil
31111'mnnicgnl p.... •r til
n( App.v. li •, 1n3t
64 See dar.h•d I
NY.2,1200,:06 (P,
wiun rnnfrr% the %
,ince Ii in po..,r is
nut be J,Irgal,•d in
rupra 3 accornpany
6r• (:f. Comelenr
rbipr, 56 Ins' % L. It'
17
I,,,I,t, rr\, t, 6,. Lcalt r r I,lnunon,p,, Id,pl,%I "Ilk II,
I. nti,l ltl.t,' au,l \etc \Icsiw,"" .old A.nutot l';Ih'la-
\c.lrc,^ f ienr ia, :vel:\lim.uu."' \hhurr,ll n, mrn the
'audio' 11.1, ha
s-tTje�1 ul •.oure 1) it it+ rrLctiu, Im,nt, �, owed in the \LC
lel
)e :I
po: 1)i pm uc ntihn .rl;:un'l I..r,vblc Inuntclp:tl infrlu"Pe.
lucnt:'' .1 c(unlin,, to I)c nl htlrJh.uu, "Ir n ICI fcctly Ill I"'It \ec Jo
nit %%.lot of devil l\'eup„n local Gnvenunutt ntdepcttdent .uuhoruv or
twit private I.M., 'I II halve Conllac( la\s or property law cavy (nnu uta
i t il' \vnulJ Ile holrendotis. At the s:nnc little, the exercise of any one
u a nn U r itf iutp'nla111 po\ccrs, ahcrher tant)!g, rc�nJ:niry or \\h:u not,
uc(csellily hears upon (nil rclauno,htps.,.
'I'his 1,ruvi+inn lus Leen Iudin.Jh' (ntt,lluc,l urtly I)) the Sulueole
Iudicl.d (,purl of \Lh,:l r'111151'it,, \%hich. 1.1king mole of its novel lan�'uage,
ndcJ that :ills spelifit enablin� IC"Nhurrl, a ruy could nw enact a
I Cot rnulnd orJln:utcc pnrstimit to in lot ue cul e:oulot r itv;•a :\Itltuuhh
Ihr \I�raachuset, Ill, Ile rule pro\ Nwil was real a, (onfcrnit>; 1Lr pollee
potcel I:pnn cities,'pp
'' r .tearn likely that thtS p.u'oCLII3r prnvnnrn will
rr`{terIle III Inhibit rte ul1peJe the rscrcisc of such pu\cer. l'n(rreunty
CIM(-rrninlr (hc impact ,pccllic �le:nures \,ill hace on private coil rela-
ion,hips nta\, force tuunicilr.-J�itie-�sa-n�t seek cimbtlmg Ic�Pisla6( 11 for runny:.
Jcvrcl alInce )U\CCr Iltca1UrC5." t ill' result \VIII Ile CffeCrivcIP .I resnr T-
rion of I)I ons u�in t w arca of police power, and a consequent in-
-—.. _
\,,. Coss. art. u( amend. I1. 1 7.,er u( the
SS. La. Co,sl. in, \'I. 19(A). It is further pron{ded char 'the Irolice po\
+Lor .ball ne, er hr atindeed:' Id. art. v1, S 9111).
b.. N: M. Ca,+t an. X, 4 6D. Additm,"ItY, the limintiuo ha+ hero incurpuratal by
\Indcl State I iin,tiu tion. Ser nnre It Iarpra.
f7. Inwv con, A,a, S 164.1 (Spec. Pa mph 1,1 19711.
Ix DII ConeA,<. lit. 2'. 1, 8o)(1974).
54. G, ( imt .\„'. 1 64 11018(b) (Supp. 1'1'4).
6n. \1, 1. Ill r. Cum s:\„'.S 47A.7-'0111) (hoc rim Su pp. IV7U
\I.C..\I n,I.frsol(alu„t. Pan,nln\,,Irrhr.,n�tetiar''-I. I:ch 7.', 1971.
4• Letter from Jerfer,nn If, Fordham m KCIIIIerl, 4.. Ill n\I:I„iI)7tPJ ?nu V I'.?d :011
rJ. \lanhJ Horne Inc. ,' Rrnt Re,. S Glice. 11da min w he an io,lrl'rodent
11'/'rb Thr: same conn suhstrluotrly held nW14U{UL: ° -li-. _ It\v I{nt rd
u. nn Iial r .r.r dw roul.l bs gYc[c.iscd
mtiv.<umutcttt_N'lih L'rnrnl_py'155--`.
el 1irlr. e. luu,ine�pp, (.umm.. 294 N17 ,1 1'I I, YI') 116,,, I'1711.
(;ere' ltd.. 757 .\la,,. Inv, '/l7 IN,
fll
as Ser \6nhal IUnne Inc. c. [Zen, Itee. h
V I 7d to ?Oh f 19714 rhe .\la,.achu,rn, conn\ cunclu,oln trIj the homy ndr,r'Irrro-
y — I,,,,.r: an-
\i.nin omlrn the sort• p�Jn:c power uprm titin nu nut Ire (into.,t uI 'a Ire
,ince the marc is wie in'c peter_. vt amuntent nuv IK nude that
-.rich
t b S. r }
nrr�Ii ilc�e4iicd iitivntic rule ciiies alnenl 'pacific e`aL m Tc a anon. See nIe�C7d-28
rupr.i” a EMIt7r1116'C text.' -
65. C(, Colnmrnt, llonir,ptl Horne Rule f'r•u'rr: !ru_Wf on Prn•nrr I oval I(dat_intt-
t7dpr, 56Imvk L. Rrv.. hll. M_?.45 I� --
16 van I.t.A l A.o ss vt% I mrt'I Etc IVol. 17:1
cre:i%c in the wnrl.ln:ill ill the •.I.ov 1, c. Inchwon „I the I\I.C;
Imitation tit a how% rule suuctun• n.n he uuncccssmty siucc tilt' v:ut
majority of (tome rule %rates, iuclulhnp sI IIIc with provisums h.iscd largely
nn the NI.Cumdel,gencrdly fnucuoo ,I r \svII without it' Most Tot-
ters which it scckS to rcnuwc from II.uml:Ipal lilt i%dictiun aic `talc fune•-
lions rather than ha'.d, and 4%1111111 ordm.ody be detueJ nnmicipalitics
since, rcgardle%s of what A Ilullle rule plovisiun specifics, cenuris Cannot
sanc(Too parochial CIM IUlciltts lin iill;jects wliiclI, byilieli nature, �nnalid -
uniform treatment throughout the state." Further, the due proc(•ss chills-
o t IC ourreent ntiiin71nent to the 1 °niter, Stares Constitution, and sim-
ilar provisions of state constitutions, should afford sufficient pnnccrion
to private rights against municipal iohingeulelt without the specific
IirniFatmFi-st'ated• in the NNLC model. :Municipalities, of course,. must Ile
delegated some authority to exercise the piilice j7ower inhercot, in start
government, but they should ako he required to pct by mems consisngt
with general state 1.1%v."
State LcKobtive Control of Iloilo- hole
Apart from constitutional 9ucunnn, the principal objection III the
N•I.0 model is that it makes most suhsl.unive home ode pnwcrs depend
solely upon state legislative grace." While preferring the NL(: model to
rhe iolperia rnotlCI, ono: icspnndcn, to Ile author's home rule qucstion-
naire remarked, "Ina scare with nu elfecrive home rule tradition, it [lily
produce almosr complete control by the legislanlre." to '1 -his aspect of
(✓r 5mmh D uta eonatimtiu d adnued the limiting vovision in IDA`, Nut ahmt-
duned it ten mn later. Ser S.D. co'st, art. \, l S (I'M)); id. art. M 4 7 (1972)`
A7. , rr m ir.I accumpnvTm�re:I: dire thrm,rI r% are grnrrally aware
that there are some %thirm upon which the%• ,minor Icgilare. It las Lcrn n.ned that
-hY cmmnum undrnanding such general suhlerr, is crime. dnmrvir relations• wills and
adininiantion, mortg2go. tants• coot raps, oval end persona pro erty, imnnncra link.-
ing,-ciirporatione, and many others have nrcer hven. regarded I,y anyunr, Icaa of all
the cities themselves, as appropriate subjects tit local control. No cin• hu Leen sn
foolhardy a% to venture generally into vw of These fields of Ixv. It has simple born
universally arcrpted 1hv these matrrn aIle %rtil ty n( 'snrr concrm. " IL WIWI.
nrpra note 1, v 67174.
411. A widely bnrrnw•rd California tonvounnnal provision is darned inward this
end. It lip'llat" "A cmuuy or cin• mac Inakv and enfnree within in Inuit% all Intal,
pnlirq sanavy. and other nrdirnmcr% and rel•nlatilms nor in conflict wirh I;vneral law%;'
69. Sts Keith. Sharlrrq of Powrrr, 54 Va I.Inc Ibv, 411, 01 11w,71 llervne Im
believes it the more 11,00t approach it, hnmr rule, Keith prefers the NTC In the
imperio nmdel. Id. ar A21.74.
70. Reply to aurhor'% hnme ride 11ne•.nom�.nv, Rn,wII %l .11uldos, 1), 1alrmrnr tit
Poluieal Science. Oreg..n Stare tini--ersity, tiluin'. 1971. Another reyondenr tinted,
19751
the NLC cunstru
hunt% rule 4vhcrc
rule powers mill I
Sliultimnal authuri
to Citics.'' All .Iq
cared on expedicl
proposition chat d
Iii concerns, hilt
powers and forte,
functions semns I
statement that "I i
weakness and a l
hamstringing of I
1896 cc) exempt ht
the operation of :
that development
state legislative c
[ltif;ht question v
model is worthy
`1 he Hist glaring v
tioc%no prote✓�nn 1
r.vennive 1)ira.nr,
Det. t, vim. Diana
convention which m
huuu before i nwen
See note Ss- %ulna.
71. Cf. (ie. 01NsT.
mural amemblr "In
which, prior to the
Assemble to act, m:
Assanblv." Prior to
stiturional a legi%lati
of Atlanta. 210 ria. 7.
Similarly, the tion
shall by gcnrnl law
apprnprisre to town•
of pmnauor of ni
72. Fordham:, tan
errrnernut Concepts,
7l. C.L. Cia%st. a
ndt• whrn a 1, ver
:Ire. \I, S S f ivo
been "a rr%ulr of in
from Sho San, pr(
V: nlmdinghanl, ,010
74. It is difliculr
1-
h;ut:
a.11u:o
;annul
rm:unl
claux:
tJ sine
ICell�.11
.1•CC::ic
;:uv Lr
❑1 ,r C t'
V. \I. II,\k II••t•l. 1:. k l
19
'.,.Ile lel; I,lall)C II
IIIc \LC cunstntct r, n.,k ler n'kr...ce,l II..nI1,ntlplcte clrrlluJ kcl Inlol nuc
honk rule tvhcrCLS Ihr Icri•d:u ul, I• Lwu
nklc Il .,11,1funcll'kn,, .nu.l I, dh :m.Inmis to little untrc IIIan cun-
%%cr, .
sunwuu,Il autholitatiull I,n the I"�IshItIO: ko ddct,ue h,nnc tide posscrs
tit cities." r\n :ut;unlCllt can Le .tile 11, the \LC altprnaclt n pnsli-
cited on expediency in:uuluch :,, there r, little dmigrcement stint the
prupusitju❑ that the procedural aspects of home role arc Properly uuuucl-
pel cnnuerlt>, Lu[ the thl}icult PndalCm III tlClininl; substantive home rule
lma•ers and functions is left to the •eau Ie2pslanucFhis alluc,twn of
functions Sueuls P,uticulally, iluplu-al)FIA n li'- of f %[At Fl.nlhaul e
starenten chat i n a sena, home tide is a rcc(Ii4l t .d start h ;islanve
we:dlo ill :out :w ciforl w rsralic ns I Ifects:' Fo .Isoid IcGisLniv
hnmtlinbiJig If Lottie mode cilics, (::Ih(nntcl :uncnJcd iie rUn,11m1%fr in
I ti96 t11 U,%Clrll)t home I ole I PI kill] ours lick 1.unntf[ to el ontoII :111 nits (cool
the operation of sl.nC Llu's." I be NH: ',chcnle seems w h.tce n•ecnad
that development. Fhl.dly, situ t' vnuc (lel;ree of municipal (recd.nn f tom
tate I"'ishtive control is inherent in the concept of home coir, Ione
m<lucstiun whether the l;ovcnuncnt,ll status delined Lv the
i ht `LC
madCl is worthy of the name "hntuc roll.
I b.v n.nv glaiuy uukne+, n( the I I.rJha.0 pmp",al I VI.(: nkudell r+ duI rt linen.
o.
I �acmive rUireeu r'rA,,I irinn nnf v1\'admtl;urn es, .tit t{Ctrmtrdtrr l \'anlamh"plunl.
le
flet. S. 1770. Ukoint "f tht>nIc Icgis awtr wit rt,'hhtrtr!fifrh,III l nujm ilv v, dr 1intteacll
env rn. ion which adopted a pr.qu.,al1 gninng
Ivn..e Lc(urc puwrn, nut exercised by 1.- ,Lu, and nun • Iwrn On L, p.. •ngncJ.
. (:1 S2 n.Jna. r Ill, Coko. a pro, num asprc„ ly amh,n ln•, dn: licit,
)I. (:1. C+. C"�st. art. ole 5 I. uuknin w n, I,,, tie (; upon
I,rnrt.cl nd.h• •'tit drlelnu its puwrn +n than m:umn p' !•
Alacu.hlyri't" W theayalincciown lit withtlw ith.mltl1 hc'rneee„ity If c acnu"(I-, the Genenl
IC
vimtinul floor
orlii Ilac t,1 Jrlell.'ving 1"uwIll, I 1lllula tpuwersrm feitir�t Seth l'li ll3 1 gn v,t City
ul Atlanta. Ga. 7'-, 77 S.E.2d 721 11')5 11 . hc.
rhe C"nnec tic"t C1m,nlelinrpI pI",num ullmls
ale. "ll.e octal :n+en.Lly
Similarly, a, (rum tune lit un¢ it deems
,hall Icy gcnrul law drlrgne inch Irni+cal n'C fit
h urganirn ant, ane fnm
¢¢¢ appropriate to t"wm, cine, and bunn.l,h, lelmltlt,,rw 1iCuw cap, X. 5 I
of gnvt,rn",cm n( ,itch p"I'uical ,uhdwl,i,nh.
72. Ferdhanl, Inrrn.lncrinn, .Synrpnliuu,—rilrrrnpnlilmr I(ryian,tlivn; IhrrluJnnq Civv-
rnurn•nl,il conceprt, InS U. I'e. 1.. Ill v. LaL(mm� nnalneJr litmriruplrria ttrnnm u( home
7), (7.1L. Cn,v1. at. %I, 5
N'MI.
ode whrn a rcvi,td Inca) government amcndmem tit, adopted in I'/7n. (:`I- ( tan'
art. XI, 5 S (1'r'n), In failure to aJnpt a pnrviwm Laval Iln the \'I-,. model may have
lhtite o, of Cold"rnia, ISrrkrleY. In RCnncth E.
Lacn "a rew11 n( inertia plus the leer of d"mv thwys vhich
were rIn dnglr.: .ester
fom. Shn Sat", Profmor of t.aw, )'
Yanlandinlu
gm. \larch 1), 1773 . .
7J. h I+ d, ncnlr for d¢ author rn .harm mnrt pnwrr as "Lame uJr" whrn a may
all v. If \.Last assn •t 1111 1 %1% ,u cru I Vol. 17 1
111c ,,NLI' olodt'l Nares gnat 111th ❑I 11111 cunlperc•nce til the state leg -
Mature to dc:d effectively will nnlnicip.il prnhlrms in delen:ninl; to it the
rrifularion of the tare municipal Icl,al relationship Ly dict,uing the sub-
stance of home rub.. ( )n the basis of past and present experience such
faith may be Misplaced. During, the ccntury ;hat constitutional home
rule has been authonzed, legidadve supremacy provisions similar in prin-
ciple to the I\LC model have achieved only limited or mixed success.
With some qualification, they appear to have been successful in Nrlich-
gan75 and Texas," bur far from satisfactory in Washington--` and West
IM rescinded by a mere w3piriry vire of the vitt lecislamre. Meaningful hrxne rule
must incorpnnte he cmlcrpt of federalism within the sn'onounir. yal context It shroud
III: tccalled that the reading „f the imprnn dnctnnr into the Missouri home rule pns-
sision cat•rd colt an arca of municipal indepcmIn ce which uthrmise would have hem
(meclusVol by the complete 1egolarive supremacy implied by the Fangox,V of the pro.
si6m.See nwe I wpra.
75. 'I hr 1,,. npnun green hunue rule by the Suptcmr Cutin of \hchlgvt in laity of
K A.nIavnn '.'Dins, 'cox .Mich, 75:, 175 N W( 4W1 (14191, eorrcerly stmt% rhe prr•.rnr
•✓:nos of 1,11011yan Iro1oe toll,, "Pdincal ctprrimcm los not pct pnxfueed in this state
Ibv au nuunnn•1s city—a Gale [ur within The stare k\'e Save a wgem u( [are guvcn.-
n„ lar, and the richt til fiscal self-government n, and always ha, been, a part u( the
•....... ' IJ. at 761, 173 N.W. at 4H1. A vercran olnerver of .Michigan hmnc rale nntrd
"flic .Michigan ,\lunicilral League his had ro exert eonaant effort over the dread" to
prmnrne favorable enabling mnendment mu home rule am, and to prrvcor attempt of
certain It-islaturs to erode esnblishrd mlmteipal puwen. In I'Mr, after a reappurtinn-
mrnr based un lone nun, one vote, the ,Michigan legislature, although urban in chat.
acrer, passed as an amendment to an act of 1975 a retrictice no.min rex Jury, hour law
for firemen—which is binding on home -rule cities..The Michigan sworn is nor fnnl.
proof against the state general law approach to municipal problems by way of pro.
hibitinni and reurictinns." Ilromagc, Howie Role: Progress or Rerrngreuinr, Oram
OITtrs ✓E Vu.t-x6Fs, Dec. I'M5, at S. As of I'M5, with 2rN cities and 51 tillal;c Char@n.
Alichipro led the nation in the number of charter adnprinns.
76. The Texas Prevision, as judieialh' construed, permits home ole cities 111 exercise
all powers nut forbidden with unmistakable clarify by the state legislamre• Ser City
of Sweetwater v. Cerin, Mn SAV.1d 550, 55? (Tex. 1964). Recently, however, the
Tcxas legial]tmre occasinnally has preempted arras which the Teras Altmicipal League
considered inervnl in hone rule cirirs. Reply to awhor's Ionic title rlutaionmire,
Miley F. plricher, General Counsel, Texas .\lunicipal I.caqur, fall 11171.
77. flmne tide in Washington, as in Michigan and \\•cu Virginia. is a nutter of
leyislarive grace. The greatest complaint of the Association u( M%hingrnn (:iiirs is that
Ibis kind of home rifle rends In result in the imposition of under financial burden on
hmnc title titin for the benefit of municipal employees, who. aided by P„u, rid labor
unions, convince a strung Inhhy in the state legisianne. Letter from Chester Itirsen,
pcecutive Direemr, A,soc•iation of Wishingtnn Cirin. In Kenneth MSnLmdinSham,
Jan. 11, 1971. This is a problem commrnn to cities in ether sure, which even may
arise under impnic provisions, especially in the area of law enforcement A solution,
however, is affordel by 1 10 of the NLC model which prevents, slate legislation requir.
ing increased municipal expenditum fmm taking effect in anv city until approved
by its council unless the legislation is reacted by a two-thirds cote of all members of
Virgulia.` 11•,'lie
state legislatu;' , til
lie policy or by p
self-restraint .and
perience in soltic st
Absent contrary c
plenary authurity
entrust the gr,inti
rector of a suutht
home rule qucsric
leglslarure.rr I llls
tures as Well. Me
cent of first term'
Nur only are Ina
tad, house of the st
rxji,ndirurt arc a;•pn
7H. Under a
Minn, West V",ani:
lcicgated rn Diane rt
\C'csr Virginia ci'irs :
{arm of gucrmornt
beth sure and Inca)
existed no actis< stat
cufilon and eel"Mer
Iliad of tach arnaat I
Virginia I.egisf.uise :
home rule, We I(.
appendix to M...Is it
of sum, home tide
Qwstimtiuml Vol,i,
79. one re icwcr
and big city afhirs i
politim. The 11' ror
rnunicipalities puecs
pleasurc of rbc legi
den arae Ircid a„rc i
the )fish Dcmocrao
lure .. .” G I. Ib,
No..'fee l
14lo11x W. 'Iv.
NI. ser 1. oIRW,,
the me of l " .,I,
Unitcd Sryc (imc
study, snncs ing it,
to Is Ini" rid us
1,sidaaue) r•, he 1
(;nv'r 149, IMV (19
tlii 111.II II•\I IIU\II 1.1 I i.
1
I
\'in,�ini.1.'" I I,ul,c rule undrl +uch Inl,cnn,u, Is t Itt:Ilk c nuly ,\here lite
state Icl;ialmurc. Irinln.ued either lav .t hnc�l tha[ 6ulnr Tole is I;uud puCS
lie ludic}' Ile by pl e,Sir, C it Ion sl 11,11 scu nnu cII1,11 Iehues, r,errr.cs
self -restrain[ andonl d sclsin l;uardinl; hoof ode PI V1. n ilex. Clic cx-
.
Ircrit•ncc in Sums wets, makcs this cnmhlo
in poli:flu uw much it) cxpvct.''a
Able", cuirl:lr't cul 1s11lntioll•Il I+riwsiollssl . Ile' Ic"'islalt res leq:llly IIIISOCSS
plen;vy :lwhurity uccl ritics; " but it nouclhcles; 111.1y nut Ire d0irablC to
enuust the �rantilu; of home''Ile po,vets 11) lhcol. 0110 OCCI nee di-
rector of a southern .lane uuuncipe1 IV.u',uc in his reply to the author's
hulllc I'lllc titlem iollia1 I C sulled,'•tin fall, „e have m St.0-sr' IIC In our
Icf{islaturc." Iltu uhselnuion Ii1;cIY applies to want' oilier sclu Icl;isla-
nlres as well. \Icluhcl,bip nunucer is AIIv hill ,villi Iunsildy Sl) Itcr-
ecnt u( firs[ term loo I.Iflinl! either n, scel; ur n, Nevose reelec•rlon.w'
\ot only arc nl:ulc ItI'isl.ulns eeidcnlly uu•\perlcncad In dc -111119 „ illi
n li Luusr „( the sI m. I. a,Lnnlq ni uul. ss lump.ullirwot t,• r nee the tnr nasrJ
npvrehnu• are apps upum.,1 I,a du silt' ul Ihr 'one I'gi'luke "out.
74 Ludo a In ns n,.,n 1�ntnn. r,l alnlntl rrllwuu fnuu Ihr 1'IUN \lir hi1n11 nntsli-
mti„n, W"\'Irnnl., lu, uul ulv hole "W,."nth Inn u• rad••. Int its Irri.lau,Ic Lx
drlrGned in hnmt. tole uer; In. .iS;mfir.utl pmsels nor I,tww ,I nnu ..... lull tines.
\Gest \'uginia chit•. a hru I...mwiter
e ndc prinunls in Dolce w ateoo5. t"Un. t'auno.yilivic at
(nnu n( eurrumu.nl Ser Vint ....linghmu' wpr.l nnu I, at 'J 1011. d,rn•
Inch date anJ lural Icsvh :ggtears unf avmahl, Int cuWe hnn,v ndv A. and
exi'led nu anise late 1111.1131.11"1t
Icu;uc o luhbp far municipal imemst s.
rratimt and enarnnrnt „( special Irgisl.uioll tnnsmumd m bast In".holtllt u( dtr ssurk-
lu.nl If ooh annual Icgisbtia• sr"iun, lirply ,n amhnr's home rule yoesuoilluit r, West
nnunt an \',rg
\'Irgilm Legislati't Scn urs, Prh. '.G, 14rt 71. 11idduiulol cm\1'rst the
I rule. see F. ELMNs, \It'.u:uvt. Ilusu: Ill n: iv lVtsr
V""1111%,ill, ah5dmion
appendix to which incl...I,, a proposed unprrw !none ndr an n•mhnent I',
of wntr home ndr powers suhnurted in Lv the 11'est Virginia Cuununs,un on
Cooginnional Ilccismn. 1.1. at 50-s 1.
79. nn1 resiewtr has noted, "ILIegiQ;uier d,nnnunr. u( sued rvmrrnls in I;rnenl
and hiq city affair' n, p.utieul" always h:n hccn a unorml I,hcnunclul" of Aanrrteahy
n
p„h,in, I -hr historical '(.uhcr knows hesi If* of s�u-Itamll trlisljl ,ni unlly late the
u'nmcipabnes p,,.tc,, Ic,v
it no ril(ht' n( s, -It rncrrnmrnt
1d. as�lre „1 •!.e kgl,6nlre, i, Iel;inn. Bo'nm u
Is nspecial lase. ;pbe hr:r'1' hand of
the sun: 1, 7i.latuu is .rill felt today. I:,rn afar .on,r I n ln, rule gait+, and even though
the
the Irgisla-
Irish Ucm'crit'. rather don dum
: S',kce 14puhliemn, now Jundnyt.
tun 2 2 2 2” (nen•. Blink Ret icsv, 0 Ast. I'm.. S,.I. ll1's, fins
n Cedar
.
4u. Ser I J. Irmo, mpr,t nnue 16, 1 2217 City u( Clinton v. Cedar Rapid. h \lu. R.R.,
±N In,,,, 4i5. 475 114641.
St. Set• J. StN,Na'rw. :\..x11'RIe. tV Silts aw La ti Q1960" a 2l 9? (1971). 3o if the
the are u( turnncrr i, un lue,rionahly high lin the lc%vh neadv Jnulde elide of the
Cnimd Suer. Co�n;rrs.), Stnaver's figure utas' IK snmce•hat influnl, :\outlier recent
lr, sun'eyinG the period l';61.1971, found us rrtll turnover in dte S(I state amtr.
at hr W.IK and nwill Iurnmer in the at) l rl is hrrs7nrnnrrr `k1 d+r l Sorter, it aSTATE.
bci,l.nurv) In Ire If I',. Ser Ilnsrnthal. 1 r;,'
Gm't Iiw, li'+ (11/71). In any cvrnt, leg, h-ke turnover, "Inch varies t:on.idenLly
22 a o YJAM ANo MARY I Aw 1111VIM I Vol. 17:1
municipal problems, but as part of a body which is frequently highly
partisan, they are beset by special interest groups that often can exert
greater influence upon represenratives than can state municipal leagues
or the cities themselves. Moreover, the selection of many nuulicipal of-
ficials on nonpartisan ballots may render them ineffective lobbyisrs with
the state legislature. For these reasons, questions may be raised concern-
ing both the competence and willingness of state legislatures fairly to
represent municipal interests. One respondent to the author's home rule
questionnaire stated, "I simply do not believe that the legislature can be
counted on to represent adequately the municipal interest, and I think
that local action to preserve that interest is desirable, with reliance on
judicial review to curb abuses." "a
Historically, the state legislature, jealous of its legislative prerogatives,
seldom has been an ardent advocare of hnme nlle. Since the :Missouri
Constitutional Convention of 1875, home rule frequently has originated
with or proceeded from consrintrional conventions rather rhan from
amendments proposed by stare legislatures."a It is difficult to ascertain
whether without the initiative of those conventions home rude would be
as widespread is it is it present. However, Illinois and Montana finally
authorized home rule in 1970 and 1972 respectively only through the
ratification of new state constitutions, and Indiana, currenrly the most
among the states, id., is sufficiently high in sane insnncvs to affect advcncly the legis.
Wive prows, and raises quesdom concerning the political accnuntabiliry of the state
legislature, the body which in NLC rates has virtually nlmplcte control ,ver suh-
stanrive home rule powers. Of count, this assertion assurnes without empirical proof
that experience is preferable to inexperience in sore legisluon. One writrr has tinted
that in comparison with the United States Congress the average state legislature lacks a
corps of career Irgislaenn. See K. PALMER, Stir Politics r9 stir Ue'ncn Stilts G5-66
(1972).
Dean Fordham, nevrrrheless, apparently has not little faith in the competence of the
stare legislature in gram home rule pnwers to cities. He recently stated, "To denigrate
sole legislanrra as weak insrimtiorls is unimprosive.'rhey arc central, basic policymaking
and power distribution centers and the nbviuus positive approach is both to strengthen
and on rmsr them" Letter from Jeffcnan It. Fordham to Dale A. I larris. Acting
Director, Montana Commission an Local Onvernmtm, March 72. 1974 (quoted by
permission). Granting the eorreemess of his coneeprion, some doubt remains a to
whether the sett legislature can fulfill in toile adequately where home rule preroga-
aives are invnlved.
82. Reply to author's home rule questionnaire, Maurice H. Merrill, Fmerirus Pro-
fessor of Law, University of Oklahoma, Jan. 22, 1971.
A). States in which home role was initiated by limited or unlimited constinuchanal
conventions include Alaska, Arizona, California, Connecticut (pre-existing legislative
home rule still in effect), Hawaii. Idaho, 111innk, Michigan, ,Vissouri, .Montana, Ohio,
Oklahoma, Tennessee, and Washington. Oregon adopted it by popular comtitutional
initiative. Kentucky rejected a eomtirution providing for home ole in 1966.
populous lion -hut
the introduction
It has been ass
scntation in IIIc st
to urban problcn
critic of the NI,C
One
INLCj mode
portionntcnl
represcntatior
more accurst
discrcrion ov
AMA IN I.0
Mole cquinlbl
the landmark on
Court in Baker v
that these decisit
state legislatures
they prevent leg
who advocated
to Baker v. Cam
leverage, failed
metropolitan rel
total suhurbun p
both central citi
lations have dif
hence different
84. As of 1971, t
of the Indiana Corn
mated dot he Ind
nuighr cnmider the
to anthers hnme t
Analvsr, Indiana Lr
hnme tole adnptin
goscrmocnr. C. A
)ronially, \Fest \
nonaeu curcmmc
Af. I::onogc. Hr
A4. 369 C& IM
87. 177 U.S. it)
AA. I Rcarsc m
I'OPVLVIa`a I -IAA t
1.1 1 1
eTIM of rbc
"n dcnieom
nhcs nn:mg
.� .rrrm:rhm
in%. A, ring
mains at to
uh prerrrnp-
Pro-
le_iJative
nn. Obi..
!3
+tl N II•ll. IhIVI :n II.
pupul'nls nun, huloc IIIc +t.uc, has never ,itcccJc.l w ad pullq Il dcspilC
hrLl
lln''
o Alf hi+hccn1y111IIC IlI11.11111?rintllum tllrj111111II11CIp:Itlltic6lprbl ttitiunil4 rcpre-
cntatiu❑ in IhC sLllc lci;isl:uule woulJ nLd,e that hotlt wore ,yllp.nhcnc
to urban problems. I ills viewpoint was capresseJ inJircal) by MI early
t-rit it• of the NU. Iuodel:
One nti,,h1 he wng to give Inn. aeccp[anec 10
Oof the
Tellr
�LC1 Mould if there were gtcater a»urano:, overall. Tell)-
I
ponionulent of state legislature+ Ill if,, direction of greater urban
epresentati"n. :1 state legislature rcplcsenting urban pupnlaunns
more accurarcly might be entrusted wnh the power,
of 'life d n [Ile
discretion neer a municipal home ndC power, delinea[a1 in the
AMA 1\LCI tnudel h-`
\hquir;ddc rcprescntatioo for cine, subsequently was insured by
he ooc rehrldUarh Inc-nl.ul, one -vote Jecisiom of rile United Statcs Supreme
Court in Baker :'. Carr'" mid Re) tioldr r'. Situs."' In retrospect a appears
that 111M Decisions may nor pnrvole rhe long suul;ht Panacea (it 11).
.`t at L' Ie'g I11aN rC'i nlure responsive m urh:Io problems of cines, nor may
Chet prevent Icoislarive meddling in rile internal alFairs of clues• dlany
who advocated more equitable political rcprcsentarion fol -rocs prior
In Raker •v. Carr, in the belief Char the result would imprott. uuhin tale
Icveragc, failed ro anticipate futon population mnventcnts within the
metropolitan region. The 1970 census revealed that for the first rime,
total suburban population exceeded that of the central cities.'" :\Irhough
11-
both central cities and suburban arenas ice
at character,n in PO
ndracialcharacterist characteristics, and
lotions have (different social,
political interests. Suburban residents, inchldinnfanV
hence different._ --
1971, there IuJ -cc II un+uccc++(nl attcmpn during 16 pl cvinm scssihm
um
riA.nerPl Assembly m imrimre cumtitudunal hnmc rule
r neAN,
h n min it ht
Alfof the Indivu
nom,l dor the InJia<I I ,ndC[tc r the ncs.1 that
it cr an p
n,Icln cm,.uler rbc XI -C mnJcl for til\nlrncs 'I'it rChile te.11l nett t`nver,....wl ReseaT. rch
r+, a,uhni+ hnmc rule gocdiunnA rC,
Anah+I, In,lnm Legi+lame Council. Fch. '4 1'171. \la)vn of lndiam Cir have oppuwJ
hnmc rule adnlninn, Iiclicving dist it will (u+mr the development of rminril.mainger
If oda tin council
Lbl Cru uic C. An. w C. dist i Un1r P\ne Ii PnA� A�nPles 2115 Nth cd. 197. .
I Ilieally, 1Ve+r Virginia chic% opt for home rile for the purl m P g
nunnrer gurcmn¢nt. See note 78 nipra.
ef.lfrnnuee. Horne Ride—NdIL hlnAel, 44 NAT. NCV. Rev. W. 115 f19f5 .
m. 369 C.S. lw-(1962).
87. 177 C.S.5I1 (1964).
X. I LrRI %L or n¢ Crsaos, U�nru 5t.vn Urv'r or C-o+I srncr, 197n Cr+sea o
N
pnvre,ume I•INO (1972) (Table 34).
24 XVII I.1ANI ANI) \1 \10 IAW uevo-:w I Vol. 17: 1
emimrants front the urban core, are evidcnrly as hostile toward the cen-
tral city as the br3uer allegedly has been."
Very few respondents to the aurhur's home rule questionnatrc believe
that political icapporrionutent will either obviate the need for (tome
rode"' or make the state legislature more responsive to urban needs.
Further, only a small fraction of the total population of many, if not
most, states resides in the largest cities. In no stare do iepit-se» tatives
from the two most populous cities constitute a majority in either house
of the legislature. : archer, although nor expressly overruling IJ,ak- v:
Carr and subsequenr reapportion mcnr cases, the Supreme Court of the
United States, by permitting greater population deviations autnng leg-
islative districts, appears to have retreated somewhat from its previous
requirement of the most exact proportional representation practicable"
It is highly unlikely that legislative malapportionmenr will Ire as josidl-
nus ae in the era prior to Baker v. Carr, hur nevertheless a star, Iegislatnre
in which suburhan :md rural areas are :unply represented seems an un-
certain and unreliable guardian of home rule prerogatives. Skepticism
voiced concerning the wisdom of vesting legislatures with "life or tenth"
authority over municipal legislation" may nor be altogether unwarranted.
h9. Jerome P. Cavawgh, former Atayor of Uctmit. has said, "I could work better with
rural Itepublinn legislators than I could With wburban Denmcrars. ]'he suhurb,nites
feel they have escaped the city, and they are not ab(nrt to cure anyrhing with the
cities." Milwaukee Mayor Henry Maier has said he finds the suburban animde to be
one of "Ler us rap into your sewage and water systems and your tnnspurtaiun sys-
tems, but keep your damn blacks out of our backyards." David Alurny, The Subur-
banire it Drrnibrd at Today'r "Typical" An(rriran, 'I lie Courier Journal S Tines
(Louisville, Ky.), July 19, 1970, S E at 3, col. r. For comment on the future of the
central city and its suburbs, ter Al. SU MAV, URBAN POLITICS 70149 (7d ed. 1975).
Stedman suggests that in the largest merropoliran areas the suburlm have became in-
creasingly independent of the central city economically and socially as well as politi-
cally.
90. Even assuming perfect proportional representation, home role remains necessary
and desirable inasmuch as it relieves legislatures of the burden of legislation concerning
local again.
91. The Court has upheld respportionment schemes as constitutional if thry are based
on some rational stare policy. See, e.g., Gaffney v. Cumming, 417 US. 715 (171)) (re-
districting in accordance with policy of establishing a rough equality of major political
party strength in cacti district justified represrnntive deviation of 7.93% io dor house
districts and IAI is in the senate districts); %lahan v, Howell, 410 U.S. 115 (1971)
(maintenance of existing political boundaries justified representative deviation of Id 4X);
Abate v. Alundr, 811 US. IBE (1971) (preservation of town-eounry rooprntion just -
fled multimember districting despite total representative deviation of 11,914); cf. Salyer
Land Co. v, Tulare Nater Dist, 410 US. 719 (1973).
97. Ste note 95 orpra & accompanying tea.
'I 19751
t Oxo
i
N
lirrect Or,rrrr of
'rhe \LC rand
visions at the tim
adoption as a pr(
Prior to 1953, \c
initted cities to c.
a concept which
vVyornino, Florid
sions. The home
charter -making pt
with its artendanr
having a salutary
home rule is adopt
ficiently strong to
ally, however, (Ira
hersome and diffic
and insriruting a est
adoption of home
especially the Iddc
Oregon, reveals rh;
requirements, direct
mentation of home
Liberal Judicial C('i
Provision is lacki
of municipal pow(
Jersey constintrion
93. See H. Mcli us. n
94. Ser gennally Can
95. K.J. Cssysr. est. I
struetion is contained it
in the areomgnvinv re.
ar 9. %lissrori did mrt
adopted in 1971. Califm
nor speciliv liberal inter
been "19hrn there is dt
P.11 or to a state matte
resolved in favor of th
Los Angela, 33 Cil. !d
1975 I st' `•n II -NI . uuw to I 1
?5
Direct Grant of 11ne Rule Aruhoriry
'Lhc NI..0 tuudcl doc%not rc11c•Ct sums ldcas curler, In home rile pro-
visions m the rime of its publication. 14rr ex:nnple, it requires ch: iter
Jnpriun as a premplisuc to municipal exercise of hmnc mile prr\vcrs.
Prim to 19i 1, Nc%v fork, \Niscuusln, and, to :I larrnc extent. Uhiu per-
uliued cities art exercise home ride powers xvithuur adopting charters,
:I cuncepr \vhich has been followed in the recently adopted Kansas,
\lrynming, Florida, Iowa, Massachusetts, ,Maryi;md, and IllinoisJh tvi-
the
signs. 'I he. home rule idea hats Meer, assorcoed lustnnc•all}•
ch,mer making power; one ruiv au lioriry endorsed charter writing,
with in attendant rx:uninar uu and review of esisting nuuncipal I:nv, as
hawing a salurary effect upon nutrticilial f!ovcnuncul.- I urther, heforc
home rule is adopted, f;IV0rable local sentiment :tn.oahly should lie %uf-
Gcicntly strong to impel the writing of a uuuticipal charter. O ccasion-
,11s', however, drafting and Alnpting a municipal charn•r invulvrs runt
bcrs'nue and difficult procedure siuhilar uI that requited for drafring
anti inxiruting a J ne\v state constitution, :mtends to discourage ur delay
adoption of bonne rule. Although experience in some home rule stares,
such as Michigan, Cilifonua, Colorado, and
especially the older ones
Oregon, reveals that home rule has nor been blocked by charter adoption
requirements, direct constitutional authorization would case till ingdc-
ntenwt inn of home nlc fi4
liberal judicial Consmic(ion of Municipal Po---t7s
ng in rhe NLC model for liberal judicial construction
Provision is lacki
of municipal powers, a stipulation which first appeared in the New
Jersey constitution of 1947p1 and has been included in most recently
91 Ste 11, M. HAM mprn note 1, at 617.
r94. see grnrnll y Vanlmdowhnn, nrpra nue '-a' 'Hn-HI. i' ,
9{. N.J. r:n�v. art IV, 5 7, r 11. Ahhnoch nn Irrnvnion for hlirr.Il bti.d cnn-
%tm,,inn is contained in the test of the \-[,(:model, the S", Jcnry p""'i""" i` ""ted
in lie acennipamine rrfrart. See NI.C. i\Inun. Cuvetntrrtuvnl. Panu+ur%e, uipra 111" i.
,% -C Vile pruvisiun
at 9. \IN,oOri did nm stipulate liberal judicial cummn'tmtt in the
utm erns le Ilur dues
aJ„pted in 1971. California decisions under a revised local
not yutif, liberal inerprnanun have 6vnrrd the 'rate. Tilt judicial Phdw
nphy Ins
been "1\'hrn there is doubt as to whtrhtr au utrmpad Te Of
Willaimn.
rlite I" iLtclail to,a nnnt I toe
Pat nt to a 'rate mann, ,, if it tic the niised cunctrn of on. Abbnrt V. City of
trilml in favor
f the
LO, Angeles. 53 Cclt elegislatives
:d674. 6HI149 authority
P.Idf1`t. 9state s'
7479. 1 CaRptr. IIH, I61 (19610.
26 III IA\1 Asu \INI/5 I ttv tIAIEw I \'ol. 17:1 1975]
ulopled holne tide pnn•isions. Bctausc .l judicial presumption f.tvoring rule tradition, prat ;sit
the validity of MAI' ;vises under the sciuration of powers theory,
in significant legi.,Lni,
cities arc placed at .t %cl ions disadv.nua,c lit the litigation (if stale-niunici-
commas(', to the extent
pal ronflicts. Rcquinm, liberal judicial Lomm�ictiun of house rule powers
judicial definition, Ihr
nlay induce the COMIN (1) tales .1 marc enln,hteucd attitude toward those
portant humc rule pre
numicipal ordinauccs not cmirely rnuwtent wah state taus, and it ap-
society requires oras
pens that such a stgnlation has reduced the• impact of the traditional
and functions. -Ihuss
pro -stare presumption."n The Supreme Court of Kansas noted, "This
+
declared start' In eliara
provision simply means that the humc rode power of cities is Llvoied and
theory. This, ho•.. ev(
should be upheld unless there is a sound reason to deny it." " ht New
mental powers is AW
Josey, the liberal comtrut•(ion provision r.lises a presumption in favor of
Although deliuenti(
the validity of municipal ordin.mccs," and durin, the first two years of
admittedly is diffirolr,
hone rode c\perience in Illinois, it is Relict cd o) hate been an influential
no greater obsracl' s tl
factor in several favorable home rule dccisiom by the supreme court"
mental problcrtls, cspe
The impact of the liberal ronsrrnrtiun icner is nonetheless difficult to
while under hgeriu I
assess given file various possible facto:d mtIallons involving ronfiicts bc-
tween state and manic
[wren unmicip;d ordinances and same sl.utn(s. :Moreover, the rule of
courts to make equal
liberal construction canner gram to cities powers not dcleg,lacd to
powers have been pre
them ,•"" and where there is direct conflict between slate and nnnticipal
The intpoio eaperi
govcnunerns in their exercise of powers, the state must always remain
gerared the difficulty
suprense. Finally, the efficacy of rhe ode rests upon the willingness of
rule is considered .:t le
courts to consider and apply it conscientiously.
York, Ohio, Oregon,'
years have attempted
lsna:mo Homr. Ret.r. ANAL1'MI)
has not hesitated to in
made California one
Insofar as rhe imperio model involves a difliculr definition of substan-
cities enjoy, rather lin
live home rule powers, it merits criticism, but in comparison with the
-- —
NI.0 model, the imperio theory offers a more wbstantial guarantee of
101. see nae[ 75-62 :,,Pea
1a7. BY the rnsnn:nr of
meaningful home rule power. As noted above, particularly in stares with
state in national go,rmm
politically weak state municipal leagues and without an effecrive hollle
Such an argument cmlld
Pripet or Rerrogrer.:on,
94. But ire .Alma, Cuu9ry Home Rule -sharing rhe StaeY Legirlarive Pemer ;circ
Int. Iteldv to aurhw'v h
•vuryraud ermines, 78 .\In. L. Rr'v. 327. Sit %.59 OWN). ++herein it i" argued that
feetor d Law, thikenty o
Llwral iudiri,l r+,mtmninn has done little u. enbr•2 h.cil ltnwch.
101, .fire, rg., (:it,. .d Lt
97. Claffin v. wal.h, 21? Kan. 1. 7, 509 RM Ila[, Illi (1970.
(:al. Itpu. S17 (1971,, tin
90. Ser, e.g., Kennrdv t. Citv of Xeo art:• P) N.J. 17N. IIN A.?d 473 Illi 9,: 'l ue n-
Tn aa"id political nly... iri.
.hip of Chracr v. 1'anirurci, 114 N.J. Super. ??4, ?NI :S.?.I NII (1971), Sole +. Llnkr,
i
Ironer, gamed nmle, ilia
Ino N.J. Super. 2147, ?41 A.hl 671 (191.8).
"h Ilio lu'ying of •a•v . el
99. ISiehvl, !lame Rule in swunir eflter Yen Pearl: An Uncertain Rrgimurg. 4 Jam
Iegnhm re. • Svso. (.,.'.,r
,11+u. J. I's & Pam. 251, 271.72 (1971).
mlc uith no indepen-!^.,r
loss. See, v. g., 'I'nn.orial. Inc. v. Union Lin'. IIS X.J. Sul,cr 11, 277 1.?d 'd Jr (1971):
I,,,. acuparion raa. un
Sussex Svnodlands, Inc. v. \lavor & Council, 109 X.). Super. M. ?69 A.?d 502 (19701;
muhaizarinn, Mr -11i: '1-14Denman
v. I of Nnv Rrumwiek, f0 N.J. Soper. 10?, NI A.?d 114 (1904),
she r•..ing pnwer of home
1\�
2,
Iia tl
-� r.:!, tnl,lni,nl, protlsum, h.lwl nn the \Ll. nl.�,!d hunt Itkely trill I"111E
,u si�plilic:uu lmn hllvu 1,11;.11 of substaunsr Iwnlc «dc poacrs.'"' I.y
("I'll Ibr, ru the r¢ta1 111.1 suhslanlicC 11,1111, line puwcrs are clp.dde of
In1u'I.II III fillnwli, the renP,im Homed :nsrne•, uuo of .0 feast snore ❑u-
I'in.int hime rule plcn1..nits. ( )f elllll\, III e d\ n.utm: n.nurr of ulb.m
:iUCIy ImineCLItIll It ucc.mon.d ;idicul redehmu„ Il it rmcmittental potters
udfun 1;111;, Iltruwin,c\clusivclynlune11,a1 Illain.ucLuerjudu't.tlly
!eclared'.far-•. m character, a factor dcenrc,l .t shuLtcnrlillig of flit impenu
:iu,dy. I-lids, Iunvever, ll%Llluiks the f-lct Ih.0 rcleFninr'n if glivern-
nu'n1a1 Iliwers is nit unielut w uuprrru st.tas."
u provisions
dchlicalian of hunk talc puucrs under iutprri
aduuocdly is difficult, It i, nut MI iwllussiblc 1.1 SII. and (,crt.linly Iluccrn'
nu "reattr ubsetcdrs than dies the rcsnlunuu �,f nuultrius 111'3 !'
nn•1al I,n'blcn , cspccialI% Ihosr i1)%oI 11;1 ciut!ict of I:ms. Further,
while undrr iHiperu' prnvnlins the ludlcul.l must Icsilve ,oath fs he-
ncecn !r-tIc :unl nalln 1,31 spheres of acnin, !rgislauve wp)let i y forces
courts m nlakc cyu:dly dflicuh dcrenuucttl„els of whrfhcr nnuurgtal
pnwefs h;n't been prcutII, etl J,y ufthyLits.lt"laments uciyrceg-
I'hc iorperro cxpertcncc su1, J1
!;c
rated the ldficulty of delillitioll In stone •,gars wherc imperio Mule
rule is runsidered at least nunlerltcly successful, nnt:d,ly (::djfnrma, \etc
Y011m, Orumm, Uhlahnma, r\I;nulla„IIlt1 Cilnrulu, cities (nr ucury
,cars 11.1%-C :utcntptcd m exercise: hutnc rule powers, and the judiciary
h.1s nut hcslntted to lnterprcr anti dcfinc than. fuJlcial cunstrucunn has
Made C:difnrnia one of flit fete boort 1111,, scellnjIgIv essentialq,ne, wherein re rule
in the
cities tnjny rather hrrtad rtxing authority.' !,'— _-- —,
no I. Sry notes7S-N: IDpr,r Is u,Iw,pam ing tele-� aural frond of pubtieal I+n,vrr frond
Illi. lie the natnnin4 If t ril;c% of iruperm, the re
.roe ur natinn,l govrrrnnenr, cl,nulf impair +iynificandv rhe omcrpt Of fcdculi.m.
finch an arl;utnrnt mull nut In persua,ively nlv:Ir Cf. Ilrnnugr, 1Jwur Rule:
Pmgretr nr Herrnenmion, (bun Cows h V1, n.r,a•t.°'•,\Ifu,irenli atala•rrill, lCmcricu, Pon.
Ifll. Itcply to aurhur'c home ode elunm
riunnre,
fo.,or of La„', Cnkersiry of i)kiahnn'e. Jan. 22, 1'x71.
ION. See, rg., City of 10, Nniteles v. AJ.,C. Lu. Angeles, ;1 Cal. nItPP1d II (1957).
(
CA Itptr. S19 (1973). Cits• of (Aenlnle V. pnmd.rn, iN Call. .J 91, 1
'pn a. nil puha, al nppmitbn', Iv.nm titlepnniwun grnrnpa• c"Ji.de nsanun from the
pnn era granu•d unJrr them. Our ravl.up1C. tl1ln hcr,t hornn',lull he 1prr,ril'el llyttilt
'Itlhr k,)ing of ore., eul,es, fees. )'
Ivpislawn:” 1\h n, (usse..,rt \III, S I IL1. I he helmrr cit,, r, that ad„unb„ 111-11-c
ole ,ith nu independent •.n'urrs Of re,CnIle in iuqunent. Ilbmm, ,stile nuL.inp been,,
6: es, ,r, npmnn are,, .uul uu•s Lasn1 nn nuv ut,e,n ra rninps wLlrrr In legisla foie
amh,rieaq�,n, eunstiwtian.11y forbids the genrnl is,etubly wilt ovist u' deny ••r Inns
s
the thing power of Inne. arrule unin rxeept by a thw-fi0hmajority ,ore ht. l:uvv.
,h ,111 I i%%t \,.I, ,1 \I,\ I %%% 111%11W I \ r.1. 17:1
successful Iuncnl,nlll)( If houlc I,Ile. \m edlaustivc or innnurablc list
of home• otic Imul•Is ran ever Lr dl lino, LuI constInnions of a few
sl:ucs, inclndlnl, New Yml:, C.Ibforul.l, Ilhnnts, (:ulurado and ll to
\visclI Ichuc sole Wf Ibcsc prcl„I;uors Rcrause cities III:Iv hcsit:ue n
act tinder ,I bilmd (',rant mf 11"I
'le ,lilt .uuhoriry %,left as lll.0 pnlvided
by the NLC model, euunlcrariun of '.umc Imwcrs within the brant not
only %hmuld cnomi.ivc their use, hur tko sftunld relnfrve all doubt can
ccrninlf municipal authority illc%urciss: such powers.
1.15
'fhc alleged (,ill's, of i7mperio provc.ions canner he :u%errcd without
fluemion. It is significant that of the alder constitutional home rule states
Wily Ali%souri has Aninduned an inlperin prncisiun and adopted one based
on Elie NL(: model, \\'bile a cuulplex urban society with ulctrrlpolitan
regim. .ont.'inn;I! myriad I,overmuental units clay dictate fc\cer and Ic%N
casil}' defined llni rule powers, such powers nevertheless exist and can
Ile seculed clfeclively glivml an (
Ill(renr :Ind ',ymparftetic ludictaty, I he
nouns have not hecto tdtog;cllicr uoonndflll of their role. (hlr off the
principal critic% of the NI.(: mWdel n.,tcd'hat Illi• repulr ';%('lf called
attention I') favorable dccislous in the uupeliu %':ns, ul Ohio.."" Another
writer, calling for additional studies too determine clic clivctivcncss and
viability of provisirtns Lased on file nvu major hams, ride uuldcls, nWred
the tendency of New York State conn. to uphold uuuticip:d v\ercise of
home rule powers absent conflic(ing legislation under New l (Prl;'s partly
un
i»r)uain provision.
Srr also Green, 1177re holt, Preewpnnn, and t"I 111973)
General Aunnhly, in linty: RUIF iV Ian wl+ W -SI (S. Clic V S Gucr d5. 197 3)
Illar.kground paper prepared for the Illinois A,+,oubly. Ill hunts, Rode held April 5-7,
175
1'1- Fur additirmal comment nn hall vile ami nnllicipal laxation, we Vanlan,ling-
Ilam, mpw tome 1. at 271.
Int. It Ill, Leen +Iilam+rnl that ,Abwichmcm Shelli have enumcniol Ssune Specific
power•. apprnprme for numiuipal cxerciw it, it+ boob rule provision, .Srr Zimmerman,
l Inuit Ihde in .tlaue
arbIlrlr: Snare Hi,mrhal Perspectives, u% Home Hide in Aciinn,
Now. 1'/7n, at 17 Memo,, delivered :n tile \l11", husem, .\lunieilul Training InSrinue ar
Itn+soon (:,lilt(',,, 111701.
pIG. I4ronr.n,r. Ilmur Rofe-VAll, .Il hitt, 44 '1 of .%II s Ills'. IC, Ili il',: I, NI.C.
\IuI,LL (.IlW 11 rl'IIM At PPlnl+111%5, nrpRr ante f, it I1 -I2.
107. Alaccholl 111. I oral (inrr"n... q Maim• 16dt nuJ rlo• Jadinary, IN 1 I .nl. 1. lit
4S7 SN (1'171 ). Pinlessnr .\l.m biarrla +npytslo ,l that 'hoe %toile% be r nn,lut o.l Lc(urr
it ,i, "I un I:ne•' If his alarm •.ren unr.I from Ill, yermr of vmeo enn.,sl,Wk :ulopring
pm,vi,iom Inset nn the \I.r. nurdrl, it nrav I., dmiA ,ton Ivd' Pmfc+•or N1,1011111111
los aha aL+cord that die \'ra• Yor1: jndierery appranal to he 1 Ixttrr fnrnd u, home
lots, than the sore Iegi imure. Reply 11.aothur's Irma rdc rlueaiunnure, frank J.
..\la. thiaroh, Graduate ';ch On' „f """If"% (1.11 oll';I I'nirtr6ty, FAA IN, 1971
,.J
In some imglrri.
NOV YIn k'", .Inti
n;ll' ricin to rnac
la\v. In Illv%c ori•
uuulicipal pu\\en
cifics in (.tics I%i;
ltile autIll.]in .I:tt
under Ni.0 l,noi
rnnslitlit ional ur.c:
Home Ride xd
There ar(• decisi
ml iulpm-1 beyond
rule in characlrr. 11
iulperio Ionic title
(,tiles within liters,
Illi Ft' p.rnr I rn•n:
•a.Ir ,,lion /.
714. (:un.nnu•p: Cn.,
(uuofit ipil art ;,on • •'ct
I III. ( toy of I nr,m
fail (194i).
I I1. 14iohsgl c. (.ns, u
4" IIona 1.
I I1. '1 Ili+ I)rurrdurt•
Ln n ',do,x aced
l2 i, Ill P.:d'Hi,
1 17.
S". note, 4t .Ii
It hx been said.
tunuuunitics arc finallc
le's arscc•Inible of slut
4111 (IMJ), See al:n f,
,\I,mo• cities,
Ar.- If',- a .\'alis,,, of
i+ r.perjaIh true of Ili,
of Iheir udieul. f,
afhndrd h) is.
Ln. r, nJ� 'tL•s •. ,I
f... oats, it,." , •.I
"r Ihr .cur III^sT 1
J.n iul•
d" 6", n of
.u1 11.11 it, fill +I1 n• I t
Iruparr un (i rnr;m 1 n,
'r 11/rrur 1<lrlr ru1,1 Ilrn nlvrpl,llr :L..1 I'•'r111•r/n
IIA\illi'
if 'I here .IW dc(i,ilnl, IIt:11 11"61 uuuurll..d II'llnc [tilt W1'lulanccx ,
;111 IIIII..IrI I".l. Will file 111.11;11;,11 ill.Illld.lnc, 111 IIh, ('It% IW 111
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P:d Nil iM; 11'111;).
I L .\'..• unlr, 77 18 1npr.I \ .Iccun111.tn1 inl' Ic%I.
Ili 11 lux Lrcn ,.Till. "It i, tint u( Ihmc cn tion. lard of 1'..mr, dnl morn anJ nurcr
to,, unlmilir, ae linall...... G hunk rule .11 .T 1iu.r 11 hrn url.:ul I .... "It
n 11 vc le\\ un11
L •. •Ia .Wild, .d .I.Lnion In' ..ne Int I10% In rLi. .inutiou, Lour ride r.w Lr a L.ulier
torr„
pt. " W. In1u u, S. I;xn,1, 8 J. Umvr,, f;ou x•1u ,1 n nu l',nu. !11 WI,
41.
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P:d Nil iM; 11'111;).
I L .\'..• unlr, 77 18 1npr.I \ .Iccun111.tn1 inl' Ic%I.
Ili 11 lux Lrcn ,.Till. "It i, tint u( Ihmc cn tion. lard of 1'..mr, dnl morn anJ nurcr
to,, unlmilir, ae linall...... G hunk rule .11 .T 1iu.r 11 hrn url.:ul I .... "It
n 11 vc le\\ un11
L •. •Ia .Wild, .d .I.Lnion In' ..ne Int I10% In rLi. .inutiou, Lour ride r.w Lr a L.ulier
torr„
pt. " W. In1u u, S. I;xn,1, 8 J. Umvr,, f;ou x•1u ,1 n nu l',nu. !11 WI,
41.
'194%1 .I . I. . o ( \I1C1.m n., Pnn111, /J
.iu..., Liv.. 1. I. du u... 1. 11 "1. Pu d" Illl'I n.In.11l In �u'T l.n 1111 til.
111 II'r .r .\'.npr„ .,I Ci1i.•t 1, to \ ..\WIf 14 Ill.., 71 •H G•dJ11... rJ.
rl 1 .111, it,., "I 1LI .nlxlltr n luuiell.:Jit i,., ..uf.1 ld..n.lol`d 1�1'I u1"to' III'
". ......l II.. ......
,
.d 1.'11 Wli..d. I'a h.". 1111., "t"
of d1i. w,' .
d..1 ln.. "LI fins ILrtr, •1.111 ..1 1\'r. ,.....u. uu.•nl.n vnrJ
.IIu1 d1,1 6r i1. lu. i1....uu c' \hla oul..' .I lunnutd
L..n•. I.'L TIL( ,1.u1' ..Lu L... L,,i.l.lmc Lin..' ndc 1. liltrn, nl
!in ..f .11, ii11 tluncr nol4rmrr, aJupl r.l I., �r "Itr1111'II .1
ulltil
..I .L. .. II.... n...1'. 11'11. nu... Ilnm, Itrd.', in \1I.
.Inn'•. IL.. fin" J1 Lev, n( ....... Tull ..f IL. J facer llf Il Ln.
v,n'Iln
L,P.'d m Ih• r fix ..I 7'I 11 rrc xduiluvl Lc \.L...of r
1: 1 .`77, 1,nrtll+k7 .147 `I.
i a,•t:,l:••'
•Y•st ,i �,: r �,.':c � �rjt, :ii�;• ��+ ''�' y�cr�'.;_.� � ..^i:is
:s:�.'i.... ..,rata•%.•:, �ic.aLa.�.1�i%i'?`..a�t� "� •rill i
Ill %%u 11 %%t %s.0 al \'•, r \a Ill %II %v I \rill. 11: 1
Title :melt that IIIc iu:dIll ir} of lily ac esti•, u) t \e'Ielsr hm
uc title pw'
uers
docs not sent from .Illy dcfecr in the lunuC tide InineiplC itself, but
miller from an inability tar unwilbmincss It, readjust political brmnthries.
In many insNoCCs, t he n nu,d , uxur, to, he .rnuc•latit,n of suburban areas
11y the central city, it the eslabli+hwenl of 11101"pulitan to regumal
grlvcnuucros. SCvmIl lemilly adoprzd ronstirtniu'.d ptirvisitms permit
such guvernimms,"e,nld their acul.11 ev.tbli,III lent would facilitate great-
er Opportunity for Csenue of lunuc rule powers.
New judicial lelcrprrnrrion til Ingrrriu Proviaium Needed
Althnul;h iu7perirl pmvisums Ira t: 1101 \Icldrd as ❑uti11 in the \\ .IV of
],(,file rule 1s their ('ail)' :,alcor:u(.•, hoped Or milirlpalvd, in some slates,
e.,pec•i111y Ihow in which cities lim-1. IuA11( wl inis (.Irons til Cscrriw humc
rule powers, C%perie're wirh 111(.111 has ora heel, :dntgctiter unfmitful.
Moore than any Other facrur, narrOw and r(.stricti•.r intlicial imerprmi—
tine I,:Is impeded Cs11.1miuu OI humc stile pmucrs miler imps. m Itn,v1-
siuns. AdvaC:tcv Of tilt' imperio nuldcl, therCf+rrc', must inrludr a c•:uu-
pai:;n for new .1 MWI tics in its indicid uurlprerali„u,t'• Inasmuch as
w suh.ranti%c luncurin•r p I'"I'lacd Iud.Iv by snug and nuuuctpal
very fe
Inn•crnmcnts arc pun'Iv sr.ne Or purely mmniripal "', neither du• NIA:
nut the iniperio nulth-I r:ut prrvenl the inevir1llle conflicts of authtanty
brt\vern thcsr entities. 1'rr in the "gray :Ire•.” \\'herein goyrrnntcnud
(unctions fox lir overlap lits the grcaresr oppurnmitV fur municipal cs-
rrrise u( hunle tide po\vurs. This fm•r app:u'ctllly waa rcC Oli7ed in file
drafr New fork Sr:ue (•OfIVtillllim,, defeated in a 1967 n(en•ndunl'.
Ile,. Sar, r4Cns.i. :u, \. 5 ?' n1_ ('a s+t. air \'ll, \ to. rlln" Cuss'. art.
XI •, 7: T, s%. firs.,. an. S1, 4 4. Gntrrminr, rv.tblishm'm of +uah gmmouucnrs since
1•ri4, +ee :\IirmIn. 'life I•rrlirin of Ciry C'ornrly ('nrrrnli,larinn, 44 1 sf. Cram ]toy. 76
14751.
117. In a previnns :rrtirlc rhe .o'hor wa% nn,r' r rincal of rwp% at Isrns'isiuns dun Le
is presently. V• nlmdin,4'ham• aurora little I. a Prrhap% a[ that time Le Lad
I;i%cn inwtlirirrlt tLr.nghr to. the harwwr of •nn..... ul funetinn%. Fun her, a[
(cast unne %rate utpreme cuarrs since I,ace displa?rd a Creates lrndrney nm ,n uphttLl
stare precntpti,m of municipal lum-M, Liuly, %hualot ,Tire legislature f1111mv a per-
sistent policy td preempting sl,-cillyd home rule pnwcm the i"Wri'a it.. i,ion silts' Ir
the Inst corrective.
I IH. As Orly as Itl44 it was %wtcd, "1.10 relarinn,hip existing between a ',1311 and its
municipalities is u, close Iliac it may Le +aid even• citordinance mJ rain• start!
u,uutc is a manrr ul inrercv to burl, %rale andmunieipalin•, It may be said till[ all
slate affairs are a',after of w1manrial inures, til rhe munieipalin•, and thalt I�Lm';"' all
nouticipal affairs area matter of ,,nccrn w the state:' ['rat ley V. Plarlva
IN/r• fa 11, 9? 1, 4?4-25 f Ia99)
F�
�I
Mlich \\Dull h.n
state concern." 11'
Much Of Ilio fu
illative suprrruacc
upon a wiser and
substantive st:n, :n
rC( out such Ior%rc
rl'ar Ic,rrdaliar it
subject arca rs(-lu
ordinances willon
1), frusnate lir my
Inrlicy is COlISN i
cases invnlvinlr fv
noted by Justice I
Ill(. fact" in vmit c
case', Cspress rens
I lir CX1tt,IIIC, \I:IIC
neve'' be Iaresouu•d
able eonflicr brfm
Ordinance."'
114. 1)cdr N.S. f!m
!7, 1447, at' ?r, col. 6.
1'it. .S'rr limm,iie. II
19rdrwnr ISmm�pr\ n
Lor it is cr'I'lle applir
pu,LL n1 of •rat' unotiv
111. Pn••auptin.. •.Inn
cynr•sion err iu(m. at'
w pncludr all nnntiril
runni6j al acrir,n, and
noir 71, at li l,n Vl.
I ^. Cf, Florida I im
SOMINIM. V.
Cont in rases of 1`0!-
•rrrpr of ooutic il,A lust
It urs, .Sir. r:e., Itobes
IS 'lunare s Sims I.. ?:
s• !airs• of \1'nrrr•trr ?
.ii. 1'torr l•.
.o bdcnl pntmpr 11,11).
I'1, An I•.... ..-,.,'
, .r star' Low uolt•
'. 147.1.111 (Spec. 11.ou
srru firm of 111,1166pal
unmiripahair•, against t
Cl .
"III
alae
mit
Y of
:nes,
nnu•
a(ul.
rcta-
rovi-
e'anl-
4rSJ
11 Cx'
In ilie
ldul:t,
than he
It, had
ether. at
r
"Id h9ld
1ap•a
int• Iv
v'h1c11 aouLl 11.nt un hnun"I brunt ndr In L." II .npccls of luau u, of
v nc S -"nu ,rn.
\tor b u( the (uuue ',III( 1„ 41( It ulc un.l. r hotel iluierin I.Ir.
1ice Sllhre'1lal'{' ilu a j,jl.11, reln..l', I'.. 11rr,nl ! 111111lf;' 1136 'r !''." vcd,
ulnen a \'byre
wiser and hnr.ulur, sweep .,f jo'hri.1! unerirltanun, \
v.• miln1:111 e sulte :Ind utrmlapal fltllnulc, oVVl l.lp, the judiciary mune fey.
a out such jm\el:rs as are alr1)rnl'nan• (.1 nluuripal est rcise. Ali,cm a
^t clt.rr ll!,j1I:ItIVe intrnt n1 nIaISC cn.anucnts br:uiul, upon a parru:ul:u
sl:bjccr arca exclusive, m home rule city '.h. Idd b1: penuincd u1 enact
nrdinauces within the smile arca, unless Nall h rtnrrlicill.d ordinances direct
ly ffislratc or impede the iccolnplkluutnl .I a slaty purpose., 'I his
police' is cnnsiment with the cutrcm ImNin",r of thy: tiuircule (:Hurt in
r: cs im III\ing federal In cempnun of "t' 1)l %v('TN ` O( cnursr, as
nnlal 11y f usncc I lolmes, all pn•cmiLlnn (Itclsunts must be b:rsctl '11)"11
Ow Lu'1s in cmrh else.'"' I n :mm [lit puLti ir\' in dcci( :n boon rule
casts, cepress r'unuluno'1al nr m.awfliv .•rollhids nu!!hl he prescribed.
I rn Iumplc, ,t 11c Incc njllrn of ❑1111,1611.11 home rule powem '.hnuld
if( I r fit: presumed, and ncurc sh'1Idd hr :I hn.hn!, rte c!car and irrec,mcil
aLlc ronllict before a stare stanuc Is allo\yr"I to override a limina' tole
11,hn:ulr.c I.I
It' 0. 1, u1. XI, V ?(,)(11 rl'//,/1. pnLli,hrd in the N.1'. hour., ..
' I{M1, IIV 11'N'J
I'v s�+' I!n nuattc, llwmr Ilnlr_,\',lll..tlu,kl,
1'"oS „�,. ISrnmtlfc', nlnrn'tuon tea, Jirec u:J p.nncnl ulv lurv.trd uufrrrio I•n•. ","um,
I•w I. I, ,renally applinLlc m N'LC III... ku nr., e,pecia llv unnfar �+ thcv nn r•11e Ihr
IuaLlrm of ,mu•-ummcipil MOM nr +roc Ivtcugrnnn of nomirrlul pnlcrn.
I?I. 14een.ption should Lc upheld wi"h 1auluo. It " wtI!le rnmtmnll tom unm1I 11"ryrrr+•.inn or inference of legislative intent as it' the •cope u( its appliratirn, i, 6rld
Io pr, rlu.lc all Inlnicipal action in a pirticulm arc,, rete cffcct will Lr In limit +r•arrrly
uomiripal ,toren. and will render anv (into ul hnntI' ode worillim. IT %I11.1 I, lupe,
SS). ngIt.
arIli U.S. 11?, II'
Florida 1.1 4 r\vnctdn (ilnwen. 6u. r I'tul.
i, Ira ape r. 'hr rt,. 17444 US 1'1'1, ?n? 111 ll'Y?). Thr +nndard applied In• the ',ulrtrnln
thio in 1.nr+.,f (rderal preemption h6rh• 'could Im, the effect of Colot.rn•, the
.,1., „f mnn.rillal hl,rnc role power, it 'Ipphrrl in Zhu funtr,l, a, it ha' frrn o" :r h V
q, r, r It9hry c. Cite of hairl"a nL+. 156 P M vo. M (AIllnnru
la, 19691, f
I: dluu,uc v soonL. ?i l \IJ. 111, 117 -IN. ?it A ?d M. la- f.\hl. C.,. App, 1461), ,M
r.if lenrre•a u, ?'/I N.F. `d ?6N, 778 L\law, 19711, \Val!vaif V. (frust+, 419 1, \1 h I
4II. IIS. 74 1 bra (:1..\pp, IWO). 1 1 rIr(crrinl;
115. K,o„Ivania It.lt. v. puldic Ser,. (a,n.nin, 7S0 11.5, SNA, Sril (111'1
r., I. ,h i d ptev"'prom ).
111. An Iowa viten provider: "An 101" i.c of" ity Into" i, nor m,..
eh I mw, law wile" it i, irrc... 1611Lle 11 Jill rhe• +talc law:' Inn '+ I!.m A,",r.
.t• (imdr.l ooh 1 con i,ion for liberal jn.litial tun•
Sr,7 !r 11 ftiprc. P.ingrhlct 1975). l I
Ion r.l 1.nm Ipal pnwcn, such a no:.... •!'••J.I ,aur ur pnnrp I.,.rnr nitre
• {r11,114e,, ,vvn%t unrr.wmO a judicial (mrlintn of preemption
I? "II I tsst ssu s1Ats t s0 to %W % I fni. I';:I
Sum,I utI .\N If Cos I c.sin..s
-I he future success of home Tule prnvi%i oe. Lised im the NLC model
C3111101 lie prediued accur,ucly, for .lily tncanint;lul ce.dwtiun of their
performance depends upon the accumulation tui many enure years of cx-
perience under the model. I Ile development of legislative supremacy
pruvisiuns has exposed two principal di0uculrics: the judicial reading of
the imperin doctrine or the state-unmicipal dicluiunuy ituo NLC type
schemes, as the Alaska and New Mexico supreme courts have dune al-
ready, and the denial of legitimate home rude pretogaiivcs by "st.uc rcn-
tercd legislatures" with or without the urging of local special interest
groups. But whether NLC provisions actually are preferable to imperio
provisions presently appear completely n'rckv.mt. ,Many states, espc-
cially those which have nut previously had hums rude, have adopted
NI.0 pruvisiuns constitutionally, and will retain them for smile tittle. In
the event legislative supremacy proves unsatisfactory, howc%er, the only
alternative is a return to imperio home rule.
Because they consider state and municipal powers difficult to dcline
and separate, proponents of the NLC model have lle'enJCLI iurperio an
unworkable concept. Nevertheless imperio nnlains an active doctrine;
only one of the older imperio states, Missouri, has abandoned an imperio
provision for one based on the NLC nwdel, while several other st:ucs
have adopted provisions combining features of hath imperio and NLC
models. As previously noted, these latter provisions inay result in even
less home rule than could he obtained under provisions based solely on
either ntudel.t" I feving developed a substanti:d hody of ease law nn
their own provisions and perhaps fearing less satisfactory home rule
under an NLC model, the older imperio home rule suites are unlikely to
change doctrines in the near future.
In a complex urban civilization, substantive: governmental functions
which can be deemed purely state or purely municipal are rare. T[.ic
greatest opportunity for municipal exercise of home
rule flowers lies in
the gray area wherein such functions mix. The future viability of home
rule under either imperio or NLC provisions therefore depends upon the
willingness and ability of the judiciary to extract from this arca such
powers as are appropriate for municipal exercise. Under the NLC model,
and to some extent under imperin provisions, the %rate legislature can
preempt powers and hence maintain its proper role as the embodiment
of state authority. For this reason, the importance of competent leg -
M. Ser
eg-
M..Ser notes IA -19 eupra& urnnipmying text.
1475
i>I.ton conceincd si
❑ ullicipahtics cannot
has acted in a pan icul
s.mle sphere should n;
cenuplishrnent of a st:
braced this tenet; to If
of home ode powers
For home rule ro :.I
sinns, cities most recut
become more agggessii
itiative by ncring on
inviting; delay and fit
Unfortunately, many c
home rule matters bec:
dlurity. This is espccia
include broad, undefim
legislative enumeration
local action. A stare a
of comnuniry affairs.
,treater municipal use r
provision direcring libt
fecrually broaden the st
but in some states whert
Ila] influence on the cul
ntuticipalitics usually c:
boundaries, metropolis
tion of surrounding soh
fir metropolitan governr
(specially in imperin jun
Properly understood.
pal problems, the g rcarc:
A comment made cont
"Unfortunarely, nothin!
feet the rcaliry of orhn
crime, sprawl. and polite
problems will he found
Iu•;uns and judicial inr
IN,. Lrcin, City Pmn-r eu.l
Itch: IC Irmo% fit (S. CO,
the Illinmis Aurrnbly on I Imo
A
r
1975 uoart. iglu i3
islaturs concerned with the welfare of beth rhe state and home rude
municipalities cannot lie ovcreugliasited. Further, tvherc the legislature
has acted in a particular arca, a Imine rule ordinance operative within the
same sphere should out be disallowed judiciall' unless it impedes the ac-
complishment of a state purpose. Some stare courts already have em-
braced this tenet; to the extent that other jurisdictions follow, the scope
of home rule powers will be enlarged greatly.
For home rule to succeed under either imperio or Nl.( type provi-
sions, cities must recognize that [ionic rule begins at home. They must
become more aggressive in exercising home rule powers, taking the in-
itiative by acting on matters properly within their province without
inviting delay and frustration by first requesting cnahling legislation.
Unfortunately, many city councils prnbably hesitate to act on Ir;itintatr
)ionic rule matters because they are uncertain of rhe extent of their au-
thority. This is especially true under NIC -type provisions, which may
include broad, undefined grants of municipal power. Constitutional or
legislative enumeration of at least some powers would rend to stimulate
local action. A state administrative agency such is a stare deparnnent
of community affairs, through advice and assistance, could encourage
greater municipal use of )ionic rule powers. Including a constitutional
provision directing liberal construction of home rule powers clay cf-
fccmally broaden the scope of home rule. At worst it may be ignored,
but in some stares where this step has been taken, it has had a prtnnunici-
pal influence on the courts. Since, absent stare legislative authorization,
municipalities usually cannot exercise authority beyond their territorial
boundaries, metropolitan integration either through central city annexa-
tion of surrounding suburban areas or through establishment of regional
or metropolitan governments should increase the potential of horse rule,
especially in imperio jurisdictions.
Properly understood, home rule certainly is no panacea for all munici-
pal problems, the greatest of which transcend individual city boundaries.
A comment made concerning the Illinois constitution of 1970 noted,
"Unfortunately, nothing written in the new constitution is likely to af-
fect the reality of urban problems—of decay, deprivation, segregation,
crime, sprawl, and pollution. Whatever solutions there may be to these
problems will he found largely outside of legal concepts of state consti-
lutiuns and judicial interpretations of municipal powers... "" I Inme
126. Levin, City 1'o--er and the Federal Syttnu: Nome Rale in Conner, in Ilotr.
Iteu. tc It.i.note 113 (s. ctde d s. cove etb. 1,A3) (buekground paper prepared for
the Illinois Assembly on Home Rule held April S-7, 1971).
t.l AND MMM I A%4 '(VV't:w
rule is widely desired by cities, nonetheless, and to the extent that cities
adupr and utilize granted powers, they will free the siatc legislature
to spend more time m state alfairs. In an earlier cra, home ode fostered
such advances as the council manager plan in municipal government.
"Today and in the future, it can make citizens more responsible partici-
pants in rhe federal system. But successful self-government depends upon
a favorable state legislative and judicial climate and a willingness by the
municipality to exercise powers aggressively. Assuming these conditions,
home rule can flourish under either NLC or intperio provisions.
• • S"�f 23
• hII1:UI'cS
Ir•a CITY 21OUSItY; CONITSsia"
CITY i-ITIVI IER'S COWEIENCG Roams
SPS -110 -MR 21, 1977
PMB`r.'RS PRESENTP: Hibbs, Kamath, Lupbardi, Smithey, Oxens
MEMB.EPS ABSL'IP: Pollock
GUESTS: Fredine Branson
CITY S79FF: Kucharzak, Seydel, Burke, Kushair, Ryan, Kimball
RBCD24ENDATIONS '10 CITY COUNCIL:
1. The City Council not approve the Proposed Tenant Landlord Ordinance
for the reasons that the Ordinance is deficient in constitutional protection
df.:landoaners. It violates the independent right to Contract which exists
between private citizens and which civil right is protected by Iola
constitutional law in which a City does not have the authority or right
to interfere with. Finally, from a policy standpoint that the Ordinance
is not needed in this City for the reason that the enforcement of the
Housing Maintenance and Occupancy Code orese_ntly before tions Commission
(Commission version) that i•,e support the passage of that Ordinance and that
we feel if it were properly enforced that the extraordinary rcmedies provided
by the Tenant Landlord Ordinance %:vuld offer no benefit to the citizens of
the City but could infect cause a rapid and dramatic increase in cost of
rental housing in the City of Iaaa City.
DISCUSSION AND FMAL ACTION TAXE14:
1. Hibbs called the meeting to order.
2. Coordinator's Report -
28 applications for Section 8 Assistance ti•:ere approved.
As of September 3., there were 231 units under Section 8, and 42 under
Section 23, total 273.
The Housing Division is going to provide oamparables to IIUD for the 32
units in Section 23 that will not convert to Section B.
Autumn Park Apartm)ants - Open House and Oe ication ceresmony will be held
October 13, 1977 3:00 to 5:00 p.m.
Final Inspection of APA by HUD insp ctors will be Friday, September 7.3.
Commission was notified of MW Ccaference in Minneapolis October 2-5.
14--muers were notified of the following:
207. Housing for Elderly/flandicapp-A - 3.00 units allocated to First
Christian Church
- 48 unitz al.locatrA to Systems
Unlimited
p.;:.
rnJ
llous CUiIdi S:il Oil Minutes
9-23-%7 •
•
Section B - M:c.o construCLion for=lderl;;% anai.ail',xd - 81 units a3.la'ated to
MiidsLates/Old Capitol
yrotion was ,;,::rte indicartin3 Ccnnussion
Ccxmussion urrjes City Manager to make
as time will. p_nait. I•btion iroved by
passed. 5/0
3. Tenant Landlord Ordinance -
p:xirt for the above projects, and
-off available to give assistance
1.^l::xrc'! and Smithey seconded. f-ntion
Discussion oaring the norbars was held with each individual munber stating
their point of view.
Pollock. absent from the meeting se^t a letter enxplaining why she was against
the Ordinance.
A motion was offered by Y.amath that the Council not approve the Tenant Iandlord
Ordinance. Motion seconded by S-athey. I•btion bossed 4-0-1.
Hibbs, Kamath, Smithey, Opens voti g in fa -.-or of the notion.
Inmbardi abstained.
A meeting with the City Council will b^ held at 4:00 p.m. Friday,
September 23rd. Ifibbs will give the majority report. irsnbrardi will
report on the minority opinion.
Housing Maintenance and Occupancy Code -
Before discussion, Kamath made the folleai.ng sUntement; "lle started on
this 2; years ago, (as you probably know) with the Tenant Landlord Ordinance,
1975 Council, and at that time decided that the best and appropriate tlwng
to do would be to update the Minimum Fc::sin- CDwe. During t1vit time, I believe
I personally put in 40-50 hours including save crrex9ency meetings last spring
in order to submit the Code to Council. I think, basically most of us were quite
sati.sfied with it. I spent alot of tine on it outside the meeting and I was
ashast and upset, and I still am, to fL,d that what we su'xnitted to the Council;
on SeptaTber 1 we were told to take it oack and start ovex again. Naa, I have
b\ -n told that as a Cormissi.on member ti•.e really don't have any power or authority
when the Council da.:•s this. . . . As far as I'm concerned if I am going to sit on
a CaTmission, I asstu-ne I am doing it at sore sacrifice to myself, my law practice
and irry family tore. I am doing it for scre benefit to the ccnmunity and if I
spend 2' years working on saTething and then Council says to throw it back in the
hopper because what you're doing doesn't meet with the current thought, I think
that basically I'm wasting my time. I don't think that that is what the ]lousing
CaTmission should be doing, discussing this step by step, page by page and
paragraph by paragraph as we're doing it. Perhaps all were suppose to do is
simply have this submitted to us as a ruble --r starm, read it over and say, "That's
great", and send it up, because what wo think doesn't mean anything anyway. I
was pleased with most of the things that were in the original draft, %see dict then
with our hands being held for a year and a half by the legal staff, Tony Kushnir
appeared at several of our meetings and nom we are told that they don't conform
to certain aspects of law. I don't thin; br•c:ause Uie City nixes novo staff, after.
all the work and time and energy that has bon put- in by Crnmission ;members would
be simply thmrn away. I frankly would li3:e us in scxna manna, by maybe making a
public sUitc.,7rnt, that the Council will understand. A> a ocnmi.ssion member, if: I
_.
Housing Conniss.ion I-Unutes
septurl>ar 2.1, 1977•
•
am to continue to serve, that it m zurs that rry puri>ose here neons smething.
I think that I com:.! da;:n ma}b_ because of the glory of getting my n=ur, in the
newspaper once a year as a member of the comiussion. But, I really don't
think other than that . . . like is said about the n:°u: who %:•as ridden out of
taus on a rail, 'if it weren't for the honor I third: I just as soon decline'.
If this means that we're going to spend 30-40 rare hours �-Arking on this
thing over again, sone of which we touched on alot at our last ccnnri.ssion
meeting where there was some opposition. I think we have a problem, 'and
maybe the way the Comftission works is not the way the Council should handle
these probleins. If the Caimission is constantly going to he at clash with
the staff. I would somehow like the Council to knave my feelings about it and
I know privately that a few others of you are in agreanent. I don't want to
discuss it, I just want the Carmission members to know how I feel."
Commission rnetmbers decided to meet with Council before taking any further
action.
Kucharzak handed out draft of Housing Maintenance and occupancy Code to
Commissioners, along with a study guide.
Smithey roved that the meeting adjourn, motion seconded by oeiens.
Approved by :
Robert Hibbs,
Chairperson
NEXT D;LTING:
P:ednesday, October 5, 1977
City Manager's Conference Roam