Rental code enforcement leaves much to be desired

Brian Markowitz lived in a Lawrence single-family rental home with more than three unrelated people. He admits that it was not in line with city code, but may be a common practice as some landlords try to work around the law. And the city has done little to enforce the ordnance.

Brian Markowitz thought the e-mail was odd.

He and his five roommates at 1736 La. each received it from their landlord. Apparently, there was going to be a city inspection of the old two-story home: Could the six of you please not be around when the inspector comes by? Also, by the way, we’ll be removing those window air conditioners from the attic, where two of the roommates slept. But don’t worry, we’ll put them back later.

It all seemed a little odder when one of the roommates, who was late in leaving the house on inspection day, told Markowitz that workers for the landlord had brought in a large closet-like object and placed it in front of the stairway that led to the attic.

It was so odd that Markowitz brought the scenario up in the course of conversation with some of his friends. That’s when it started to become clear. His landlord was playing a game and hadn’t let him and his roommates in on the fun.

Since 2002, the city has had a code that says no more than three unrelated people can live in a home that is zoned for single family use. The home at 1736 La. is zoned single-family, and Markowitz and his five roommates aren’t related.

But to Markowitz, perhaps the oddest aspect of all this is what happened after he turned the information over to city inspectors. For nearly a year, he waited for his landlord to receive some sort of fine or punishment. It never came.

“This whole thing has made me feel like the renting practices in Lawrence are really shady business,” Markowitz said.

• • •

Let’s be clear here, Markowitz — now a Kansas University senior — didn’t exactly come forward out of some sense of renter’s remorse. He came forward because he was mad at his landlord, Serina Hearn and her company Rainbow Works LLC.

Markowitz and his roommates had become embroiled in a dispute with Hearn over a sizable security deposit that wasn’t returned upon their departure from the house in July 2009.

But unlike many angry tenants making accusations, Markowitz came armed with quite a bit of documentation. He had kept a copy of the e-mail from Hearn’s assistant, asking — on Hearn’s behalf — that he and his roommates not be present during the inspection and notifying them that the attic air conditioning units would be temporarily removed.

He also had a copy of the lease, signed by all six tenants, requiring that they pay with a single check of $2,850 per month. And Markowitz’s father — a Johnson County attorney — had thought to get sworn affidavits from five of the six tenants (one already had moved out of the area) swearing that they had lived together in the home and had seen activity that suggested Hearn was trying to hide an over-occupancy issue from the city.

In October 2009, Markowitz’s father provided copies of all those documents to city inspectors. Last week, he also provided copies to the Journal-World.

In essence, he gave the city what it has long said it has been lacking in these type of a cases. Since the code took effect in 2002, it is believed the city has never collected a fine from a landlord for violating the provision, said Scott McCullough, the city’s director of planning and development services. (Fines can be as high as $500, though the court has broad discretion in setting fines.) Only one case has ever been taken to trial in Municipal Court, and the city lost it.

City leaders have said the code is tough to enforce because finding solid proof of over-occupancy is difficult. They frequently point out that counting cars in a driveway is not enough to win a case. They’ve said previously that documents like a lease or a tenant agreeing to testify is needed.

Markowitz said he told inspectors that he was ready to testify that he had lived in the house with five other tenants.

“I told them I would help however I needed to help,” Markowitz said.

But the city decided not to take the case to court.

Brian Jimenez, codes enforcement supervisor for the city, said a key factor in the decision was that by the time Markowitz stepped forward, he and his roommates already had moved out of the house. A violation was not currently occurring.

The information, though, did cause the city to notify Hearn of what Jimenez believes she already knew: No more than three unrelated people are allowed to live in the home.

“We’ve educated this landlord many times on what the codes are,” Jimenez said.

But the city, when contacted by the Journal-World last week, said it is now looking into the situation again. After receiving the information from Markowitz in late 2009, the city received a complaint that more than three people were once again living in the home. (It currently is vacant because it is being renovated.)

“We’re definitely looking at this case in a different light,” said Jimenez, who said the city still has the ability to prosecute the alleged 2009 violations.

• • •

Serina Hearn has a real enthusiasm for old homes. She’s eager to show before and after photos of homes that she and her husband, Tony Backus, have restored. Hardwood floors reclaimed. Dirty plaster and lath made clean. Once-painted bannisters returned to their original glory. Hearn — who owns multiple properties in the center of Lawrence — points out that she is saving old homes when others are just fretting about demolition by neglect.

Hearn also has an enthusiasm for history. She has spent hours upon hours reviewing old city maps and pre-1950s Lawrence phone directories. She has highlighted lines on copied phone book pages that detail how long 1736 La. has had multiple phone lines. That’s evidence of the home being something other than a traditional single-family home even back in the 1940s, she says. That’s why the house has two kitchens.

What Hearn doesn’t have much enthusiasm for is waiting on the city.

Hearn does not dispute that six people were living in the home as Markowitz alleges. (She declined to address the other allegations that she took actions to hide the fact from the city.) She also does not dispute that the zoning of the house is single-family.

But she contends that her research proves the rental home should not be subject to the no-more-than-three-unrelated code. In essence, it should have grandfathered-status because its two kitchens have made it a duplex in a single-family zoning district.

The city has not adopted that position. There’s a process for having a home declared a legal, nonconforming use, and Hearn has not gone through it, planning director McCullough said. Hearn agrees that the city hasn’t given the home grandfathered status, but based on past projects she wasn’t entirely sure the project needed to go through a formal process.

“All I know is I’m working very hard right now to bring these facts to the attention of the city,” Hearn said.

But as the conversation goes on and grows more emotional, Hearn does share more. The economy has created financial hardships for her business, and it is clear that she and Backus have philosophical differences with the city code.

“On the one hand, I totally agree with a community’s right to regulate itself,” Backus said. “But on the other hand, it seems constitutionally people would have a right to live together if they aren’t causing any problems.”

And Hearn said she’s not convinced the community understands some of the unintended consequences of the city code. There are lots of large, old homes in single-family neighborhoods. Many need significant work. Sometimes landlords are the only ones who can afford to take a major restoration project on. She asks, Is watching the homes fall to the ground a better option?

“In the end, the city gets its money out of the property values from these houses that they tax,” Hearn said. “Right now, we’re painting that house and we’re continuing to fix it up.

“My question to you is what does the neighborhood prefer? And does Mr. Markowitz give a (expletive) about Lawrence and its economic hardship and what is happening to these houses, or does he just want his revenge?”

• • •

As for what the neighbors prefer, several said they would like to see changes at City Hall.

“I just wish the city had more tools, and more of a willingness to enforce the code,” said Tom Harper, a Lawrence real estate agent and member of Centennial Neighborhood Association.

The city department responsible for code enforcement is down two inspectors from past levels. Neighbors have noticed.

“Brian (Jimenez) doesn’t have the staff to enforce this,” said Betty Alderson, a Centennial neighborhood resident who pushed for the code’s adoption in 2002. “No new taxes. You’ve heard that over and over out of City Hall.”

But there’s also a philosophical issue pending at City Hall. McCullough said the city’s philosophy on code matters has been to focus more on obtaining compliance rather than writing tickets. It hasn’t been the department’s position to use fines as a way to punish a person into changing their behavior, he said.

That philosophy, though, may get another look. McCullough said his office is currently compiling data on the number of repeat offenders that inspectors deal with on this code and others related to student housing issues. If the data show high rates of repeat offenders, his department may recommend changes to the code related to stiffer penalties and new enforcement options for habitual offenders.

Neighbors hope it is a discussion that reaches all the way to the City Commission.

“I’m glad we have the ordinance,” Alderson said. “I just wish we would change the attitude on how it is enforced.”