International Municipal Lawyers Association - Local Government Blog

A Legal POSI-bility

Posted By: Dwight Merriam, Partner, Robinson & Cole

Looking back over the developments of the last week, I was surprised to see a zoning and code enforcement technique that I hadn’t heard of – probably because of my sheltered existence, encamped here as I have been these last three and a half decades in the “Land of Steady Habits.”

When is the best time to nail a miscreant?  It is at the time when they most need the government.  Try renewing your driver’s license when you have a pile of unpaid parking tickets in your glove box and you won’t get far in most states.  You’ll never get your diploma until you pay your bookstore bill, right?

So, here’s a good way to nab zoning and code violators – make them submit to an inspection if they want to sell and enforce it by prohibiting the city clerk from issuing any of the required real estate transfer stamps unless the seller ponies up a Certificate of Compliance that the property doesn’t violate zoning.

In the case of Mann v. Calumet City, Illinois, the U.S. District Court for the Northern District of Illinois, 2009 U.S. Dist. LEXIS 12192, last Tuesday, February 17th, found a Point of Sale Inspection Program (POSI) didn’t violate federal substantive and procedural due process rights.

The City Department of Inspectional Services conducts the POSI of real property in connection with a taxable transfer of real estate. The purpose of the POSI is to determine whether such property is in compliance with requirements related to public health, safety, and welfare including property maintenance codes and conversions.  In addition, sellers must pay off their water bills and other fees owed to the City prior to the issuance of transfer tax stamps.

The court held that: “The right to sell one’s property is not among this list [of fundamental rights], and is not a fundamental right for purposes of the Fourteenth Amendment due process analysis.”

“Each of the complained-of provisions of the Ordinance passes the low threshold of rational basis review, as does the basic premise behind the POSI: that a municipality would ‘aim to prevent the surreptitious conversion of single-family homes to multi-family dwellings and to retard the physical deterioration of the housing stock,’ [citation omitted] through means of a moderately burdensome point-of-sale inspection regime.”

Here’s an aerial, courtesy of Google Maps, of the Manns’ property and the neighborhood.

Brooklyn Park, Minnesota has a POSI ordinance. So does Shaker Heights, Ohio and Richfield, Minnesota.

This is a blog, so please come forward freely with your comments.  Do you have a POSI?  Where?  Any issues?  Do you use other techniques for zoning and code enforcement? If you have a POSI you don’t need a posse, right?