But a first of its kind law in Ohio to regulate and remove lead paint in older buildings is facing a constitutional challenge from a group of real estate investors who say the ordinance singles out owners of smaller rental units and favors owners of larger complexes.
In a lawsuit filed Thursday in the Lucas County Court of Common Pleas, real estate investor Cheryl Mack and nonprofit Property Investor’s Network are challenging Toledo’s lead ordinance.
Owners of rental properties with four rental units or less in one building, single-family duplexes and day care centers are forced to undergo inspections under the new law. Exempted are apartment complexes and owner-occupied residences built before 1978.
Mack and PIN argue the exemptions violate the equal protection clause of the Ohio Constitution.
In a phone interview on Monday, Toledo Law Director Adam Loukx called the lawsuit, filed by Perrysburg attorney Andrew Mayle, “quixotic.”
“I think it’s fair to say that we see this as somewhat frivolous,” Loukx said. “Quite a few lawyers have looked at this case and the claims that the [plaintiffs’ attorney thinks] he’s discovered are not something that we haven’t vetted exhaustively, not just in house but through other counsel as well.”
“I think we’re holding aces and he’s not,” he added.
But in an Oct. 23 letter to Loukx, Mayle wrote that the lead law “creates an unequal playing field” that tips the balance in favor of larger apartment complexes who will not have to pay inspection and registration fees.
“If Toledo seeks to regulate the housing market generally, or the rental market in particular, it should ensure a level playing field among owners,” the four-page letter attached to the lawsuit states. “Further, if the goal is to prevent lead-paint poisoning, it is irrational to not apply the ordinance to all properties in Toledo constructed prior to 1978, which all presumptively contain lead paint – the claimed cause of the problem that the ordinance purportedly seeks to rectify.”
PIN’s lawsuit argues that the ordinance will create uncertainty in the rental market and claims that real estate investors are less likely to invest in the Toledo market if the ordinance remains intact.
“The status of the ordinance will affect future rents and property values and related sales transactions,” the complaint states.
According to the Toledo-Lucas County Health Department, the City Council passed the Lead Safe Ordinance, or Ordinance 226-16, in August 2016, amending the Toledo Municipal Code.
The law requires rental properties owners and day care centers to submit to inspections and register with the Toledo-Lucas County Health Department. The department says the average cost of an inspection is $300 and the certificate is good for six years if the owner passes the lead test.
If a property owner has taken remedial measures to remove lead from their property, the certificate is good for 20 years, according to the department. If inspectors find lead in a building, then landlords and owners must paint, clean and make repairs to reduce lead at the property.
The ordinance has come under fire from landlords worried about the costs of complying with the regulations. The penalty for not registering is $50 per day and up to $10,000 per property.
The Nov. 2 lawsuit questions whether Toledo officials even have the power to enforce the new law, arguing the city and county health department is a “creature of statute.”
“We are unaware of any statute that vests a health department with the powers contemplated by the lead ordinance,” Mayle wrote in his letter.
The Toledo-Lucas County Health Department has identified close to 13,000 properties in the Toledo area that must be registered by June 2018. Officials have determined, based on census data and parcel information, that children living in those areas are at the greatest risk. There are two more zones where property owners will be required to register by June 2019 and June 2020.
Amid opposition from conservative groups and property owners, the Toledo City Council has had to revise the ordinance and has faced a challenge in the state’s General Assembly.
But in a Nov. 1 editorial, the Toledo Blade said that those opposed to the measure want to eliminate a requirement for a physical lead test at properties and urged officials to resist, regardless of who is elected to the council after this week’s election.
Mack and PIN are asking Judge Linda Jennings to enjoin the ordinance.
Toledo-Lucas County Board of Health spokeswoman Shannon Lands pushed back against their complaint.
“The lawsuit is unfortunately another distraction from the real issue of protecting our children from lead poisoning,” Lands wrote Monday in an email.