Rental Property Ordinance Seems Destined for Court Fight

By Jason Togyer
The Tube City Almanac
April 05, 2018
Posted in: McKeesport and Region News

McKeesport's ordinance requiring rental properties to be registered with the city and inspected for safety violations appears to be headed to court again --- and it's a fight officials seem to relish.

City resident Alan Wakefield on Wednesday attended McKeesport's city council meeting to call the ordinance "unconstitutional" and demand officials produce evidence that it's necessary.

It's the second month in a row that Wakefield has challenged city officials over the Regulated Rental Ordinance, which was passed by council in March 2017 on a 4-3 vote.

The ordinance requires rental properties to be registered with the city once per year at a fee of $50. It also requires every apartment or rented house to be inspected by the fire department every two years to ensure that smoke detectors are in place and that fire exits are not blocked.

Wakefield has told city council the inspections amount to "warrantless searches" and thus violate the Fourth Amendment.

On Wednesday, Wakefield told city council that despite Mayor Mike Cherepko's argument that the ordinance is designed to protect tenants from unsafe living conditions, the inspections are really a form of taxation.

"The true intent of this is clearly to raise revenue," Wakefield said.

Wakefield has also demanded that the city produce documentation that rental properties have more code violations than owner-occupied homes.

Cherepko denied Wakefield's accusation that McKeesport is just trying to raise money.

"This is not a revenue-generating ordinance," he said. "Anyone who can do basic mathematics will see that we will probably lose money enforcing this ordinance."

Instead, Cherepko has argued, the ordinance is designed to prevent a repeat of an October 2014 fire in the city's lower 10th Ward, in which six people died. There were no working smoke detectors in the home.

"We have people paying $700 per month rent to live in deplorable conditions --- conditions that you wouldn't let an animal live in," Cherepko said Wednesday.

"Responsible" landlords, he said, should have no problem with the inspections.

Other Pennsylvania communities regulate and license rental properties, including Bethlehem, Gettysburg and Trafford, which enacted its ordinance in 2015.

Penn Hills requires annual inspections of rental properties and a yearly $50 registration fee.

Pittsburgh in 2015 enacted a Residential Housing Rental Permit Program, but enforcement has been delayed after landlords sued, saying that city's ordinance violated the terms of its home-rule charter.

In Allentown, landlords sued after the city began levying an annual $75 registration fee against rental properties. The fee was upheld by the state Commonwealth Court, and the landlords' appeal to the state Supreme Court was denied in October 2017.

McKeesport officials first enacted an ordinance regulating and licensing rental properties in 2002, but didn't attempt to enforce it until 2005.

When they did, Wakefield and his son, Jonathan, filed a lawsuit in Allegheny County Common Pleas Court against then-Mayor Jim Brewster and the city, asking for a judge to rule on the legality of the ordinance.

The litigation continued for more than two years --- and included a filing by Alan Wakefield that contended the judge to whom the case was assigned was biased, because the judge would not disclose whether he was a member of a Masonic order.

In March 2008, the city agreed not to enforce the ordinance until it was amended, and the litigation was suspended. The lawsuit was terminated by the courts in 2015.

The revised Regulated Rental Ordinance approved in 2017 includes changes designed to pass court challenges, and is being enforced evenly "across the board," Cherepko told the Almanac.

Although the ordinance calls for the city to inspect rental units every two years, the large number of rental units in the city means that "it will probably take longer," he said.

According to the U.S. Census Bureau, 46 percent of McKeesport's more than 10,000 housing units are rentals, and about 8,500 of McKeesport's estimated 19,000 people live in apartments or rented houses.

Cherepko noted that the rental ordinance is on a sliding scale. Landlords pay $50 per unit for up to nine units at the same location, but the fee drops in five-dollar increments for larger buildings of 10, 20, 30 or more units.

Besides finding unsafe conditions, the ordinance is also designed to provide the city with the name of a responsible party for each rental unit in the event of an emergency.

At Wednesday's meeting, council all but encouraged Wakefield to file a new lawsuit.

In December 2017, Wakefield filed a complaint with the Pennsylvania Office of Open Records after he said he requested a copy of the revised ordinance and all amendments from the city, and it failed to provide it.

The open records office ruled against the city on Jan. 31.

Councilman Jim Barry, who was one of the three council members to vote against the rental ordinance, told Wakefield on Wednesday he found his allegations offensive.

"I'm not going to sit here and let you accuse us of doing something incompetent, illegal or inept," Barry said. "If you feel your rights are being violated, then that needs to be decided by (a judge)."

Council President Rich Dellapenna Jr. noted that he owns rental properties in McKeesport --- and had just purchased another one a few days ago.

"I voted for the ordinance, and frankly, I don't have a problem with it," Dellapenna said.

Originally published April 05, 2018.

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