Housing codes are not new. As long as 4,000 years ago there was a housing code of a sort in Babylon. Legislation regulating housing existed in China about 1,000 B.C. and in Rome in the days of the Empire.

Housing code provisions have been in existence in this country for more than 300 years. The New York Tenement House Act of 1901 was a significant milestone in the nation's housing code history. During the World War I period several states adopted model housing laws and a few communities established standards for existing housing. It was not until the period following the end of World War II that the rehabilitation of existing substandard housing, through compliance with the health and safety standards in housing ordinances, began to be widely recognized as another important method of improving substandard housing.

What is the definition of a housing ordinance? A housing ordinance establishes minimum health and safety standards governing the facilities of existing housing, such as plumbing; the maintenance, such as cleanliness and sanitation; and the occupancy, such as crowding. These standards must be so related to the protection and promotion of the health, safety, and welfare of the people of the community that the police power may be used to obtain compliance with these standards.

The objective of the housing ordinance is to improve the health, safety, and living conditions of the people in the dwellings and the community, not merely to improve the quality of the housing.

The minimum standards of the housing ordinance are retroactively applicable to all existing dwellings in the community. This principle was established by the Supreme Court of the state of New York in 1895 in the leading case of New York City Health Department v. Trinity Church, wherein the Court decreed that the owner was required to install inside running water in the dwelling even though the dwelling met the building code requirements at the time of construction.

It is almost gratuitous to say that a local housing ordinance should be based on a thorough study of the legal authority contained in appropriate state laws. Obviously, however, this is a basic requirement. In addition, the standards must be established so as to have a reasonable relation to the nature of the problem to be corrected and the improvement to be effected. Further, the police power and procedures of enforcement must not be used in an arbitrary or capricious manner that will be unduly burdensome on owners or occupants. These are merely the usual limitations on the exercise of the police power but they should be borne in mind as the ordinance is developed.

The housing facts of the community should be used in the standard-setting process. While there is ample evidence in the fields of health and safety to justify the establishment of minimum standards for existing housing, there is not sufficient evidence to establish all these standards on a precise and irrefutable physiological and psychological basis. In addition, the number of variables that have a bearing on the significance of any one standard is almost limitless.

While some standards that should be included in a housing ordinance may be set with assurance, others should be related to the community's housing facts if they are not to be unreasonable. For example, if typical construction practice has resulted in the enclosure of numerous back porches so as to form rooms with 7 1/2-foot ceilings, it is not reasonable to state that the minimum ceiling height in this particular community shall be eight feet. Therefore, it is important to obtain detailed facts about the quality of the housing in the community before attempting to set some of the standards in a housing ordinance.

As has been stated, the absolute minimum level of the standard is not always precisely definable but rather covers a range of acceptability dependent upon many varied conditions. It is extremely important, however, to attempt to set the level of minimum standards as high as possible within that justifiable minimum range; otherwise the housing ordinance may merely legalize the perpetuation of substandard housing. This concept is complex but basic to the development of a useful housing ordinance.

While it is conceivable that a good housing ordinance could be written "by a single individual, it is doubtful if this would be desirable. Rather, representatives of groups of people who are primarily affected and knowledgeable in matters pertinent to housing should be invited to participate in the formulation of. the ordinance. This drafting group might well include representatives of official community agencies such as the city attorney, the legislative body, and the health and building departments; it should also include representatives of owner and occupant groups and industry representatives such as realtors, builders, and mortgage bankers; likewise, civic, religious, trade and public interest groups may also wish to be represented.

Experience has shown that this group should not contain more than twelve to fifteen members.

Nonetheless, interest in a housing ordinance may be so widespread that as many as 100 groups or organizations may wish to be represented on the housing code drafting committee. Since this is not feasible, a housing ordinance advisory committee may be established, as was done in Philadelphia, wherein all interested parties may have a chance to participate by commenting on the early drafts prior to public hearings.

In any case, once the draft of a housing ordinance has been prepared, there should be public hearings before submission to the legislative body. Thereby all the persons to be affected may be given an opportunity to be heard, to present contrary evidence or opinion, and significantly to help define for the legislative body and the administrator the level of community acceptance of the proposed standards.

Throughout the ordinance it is important to try to avoid the trap of lengthy, all-inclusive requirements in an attempt to cover all the combinations of conditions and living arrangements in the community. Rather, the ordinance should establish the extent and level of the intended standards, allowing and depending upon the good judgment of the administrator and his staff to carry out the intent of the ordinance.

Accordingly, a performance rather than a specification ordinance is desirable. This presumes that the enforcing officials have sufficient knowledge of the applicable sciences to be able to use judgment. Both a performance ordinance and judgment ability are essential ingredients to a successful housing-ordinance compliance program.

No community can afford enough inspectors to enforce the housing ordinance in all dwellings. Nor is this necessary if an adequate information program is carried out telling the substandard housing story to the community.

As is the case with other laws and regulations, most of the people wish to comply, especially if they have had an opportunity to assist or be represented during the preparation of the ordinance.

It is axiomatic then that the housing ordinance should be as simple and brief as possible, thereby enabling

__________________________________________

* "A Proposed Housing Ordinance," published in 1952, is available from the American Public Health Association, 1790 Broadway, New York, N. Y., at 75 cents a copy.

174

people to read and understand what they are expected to do. Furthermore, unless it is absolutely impossible to avoid, the housing ordinance should be a self-contained document without reference to other ordinances or codes. It can readily be seen that unless these conditions can be met, it will be difficult for the city to take advantage of the desire for voluntary compliance which will surely follow a well-planned program.

The housing ordinance should contain a section on definitions. The definitions should be brief and clear. It is better to err on the side of including too many rather than too few definitions.

The ordinance should contain a section authorizing entry to make inspections to determine the condition of dwellings. This provision of the ordinance should contain the safeguard of entry "at reasonable times" or entry "lawfully at reasonable times." It is true that the ultimate constitutional issue has not been decided with respect to the right of entry as it relates to the Fourth Amendment to the Constitution. Only one relevant case has been brought before the Supreme Court of the United States—Geraldine Little v. the District of Columbia—and in this case the Court refused to rule on the constitutional issue, essentially because the facts were so clouded.

The ordinance should contain a section on enforcement procedure and hearings. In the entire enforcement process there must be true democratic effort by the administrator to balance coercion against education and persuasion. The persons to be affected should be given an opportunity to have a hearing before the administrator or an appeal body before recourse to the courts. In this regard I commend to you Section 3 of "A Proposed Housing Ordinance" of the American Public Health Association,* which in its preparation had the benefit of outstanding administrative-legal talent.

It is desirable to include a section in the ordinance authorizing the adoption of rules and regulations by the enforcement agency. These will be most useful if they are published as an appendix in the same booklet with the housing ordinance. It is in these rules and regulations that the specific details of satisfactory compliance may be set forth once the intended level of the standard has been established by the legislative body.

Of course, the ordinance should contain a section on penalties. Typically, such sections call for a fine or imprisonment and state that, each day's failure to comply with the provisions of the ordinance constitutes a violation.

Most housing ordinances contain a section on the conflict of ordinances and the effect of partial invalidity. It is quite possible that certain provisions of the housing ordinance may well be in conflict with other ordinances or regulations pertaining to housing. Therefore, it is considered to be good practice to state that the provision which establishes the higher standard for the protection and promotion of the health and safety of the people shall always prevail.

All ordinances require an effective date. However, that date may be extended a year or two for certain provisions, such as those referring to plumbing, which might cause undue financial burden for some people unless they had such a notice period.

A good housing code contains provisions establishing the minimum facilities and equipment which are required. Ideally, this includes kitchen sink, flush water closet, lavatory basin, and bathtub or shower for every dwelling unit. In some cases it may be necessary to allow the sharing of bathroom facilities by the occupants of two small dwelling units provided not more than a certain limited number of persons use these facilities. There is precedent for limiting this number of people to a total of four, not including children under the age of one. This should not be construed to require more than one bathroom for each dwelling unit if there are more than four people in the family.

The above-mentioned facilities should be properly connected to both hot and cold water lines, and every dwelling unit should be supplied with water heating facilities capable of producing an adequate supply of hot water with a temperature of about 120 degrees F. All plumbing facilities should be properly and safely installed and connected to approved water and sewerage facilities as necessary.

There should be a requirement for the provision of adequate rubbish and garbage storage and disposal facilities. The details of these facilities may properly be set forth in the rules and regulations.

If no ordinance or code in the community contains a provision referring to safe, unobstructed means of egress leading to safe and open space at ground level, the housing ordinance should contain such a provision.

The housing ordinance should establish minimum standards of window and openable window area for each room. While this varies from place to place, accepted minimum standards for such provisions require about 10 per cent of the floor area in window area and about one half of that amount in openable window area.

Each dwelling unit should have heating facilities which are capable of adequately and safely heating all habita-

ble rooms, including bathrooms and water-closet compartments, to a temperature of about 70° F. The ordinance should state the conditions under which this temperature should prevail, such as three feet above the floor in the center of the room at ordinary minimum winter temperatures.

Halls and stairways should be adequately lighted. These lighting facilities should be capable of providing illumination of a least one foot-candle; at the floor or step level under either day or night conditions.

The ordinance should also contain a provision requiring one or more electric outlets in each room of those dwellings within a reasonable distance of electric power lines.

A good housing code should contain provisions requiring the various elements of the structure, such as foundation, floors, walls, ceiling, and roof to be reasonably weather-tight, watertight, capable of affording privacy, and in good repair. Windows and exterior doors should be reasonably weather-tight, watertight, and kept in satisfactory working condition and in good repair. Inside and outside stairs and porches should be so constructed and maintained as to be safe and capable of supporting the normal or intended load and should be kept in satisfactory condition and repair.

Plumbing fixtures and waste pipes should be properly installed and maintained and kept in good working condition. Floor surfaces, especially in bathroom and water closet compartments, should be reasonably impervious to water and kept in a clean and sanitary condition. All supplied facilities, equipment, or utilities should be constructed and installed as to function safely and effectively and should be maintained in satisfactory working condition.

All housing ordinances should contain a provision relating to the rat-proofing of dwellings and in those areas where flies and mosquitoes are either a significant health or nuisance problem screens should also be required.

The housing ordinance should establish standards for total space and sleeping space in the dwelling based on the number of occupants. The American Public Health Association's "Proposed Housing Ordinance" suggests the following: 150 square feet of total habitable floor space for the first person and 100 square feet of floor space for each additional person; and 70 square feet of floor space for the first person in each room used for sleeping purposes and 50 square feet of floor space for each occupant when more than one person occupies a sleeping

(Continud on page 182)

REQUIREMENTS OF A GOOD HOUSING
(Continued from page 175)

room. It should be noted that the required sleeping space need not be restricted to rooms designated as bedrooms.

Most housing ordinances specify a minimum acceptable ceiling height of seven feet or more and allow about one-half of the required floor area to be under a sloping ceiling with a clear height of five feet or more. The ordinance should also establish standards governing occupancy of rooms partially below grade.

The ordinance should contain a section assigning the responsibility to owners or occupants, as appropriate, for maintaining the dwelling in a clean and sanitary condition, for keeping it reasonably insect free and rodent-proof, for proper use of garbage and rubbish storage containers or disposal facilities, for reasonable care and proper use of plumbing fixtures, and for the hanging of screens and screen doors if there is such a requirement.

As a general principle, responsibilities are assigned to the occupant if he has exclusive use or control of such facilities, fixtures, or equipment. Otherwise, the responsibility is assigned to the owner of the dwelling.

A good housing ordinance should have a provision concerning the designation of dwellings unfit for human habitation and set forth a procedure for their condemnation and placarding. As a general principle, such condemnation should be based upon serious hazards to the health or safety of the occupants, and these hazards should be stated in the ordinance. This section should also set forth the procedure for removal of the placard and reoccupancy of such dwellings. In that connection, I suggest you refer to Section 2 of the "Proposed Housing Ordinance" of the APHA.

Experience with housing ordinance enforcement shows that some dwellings that are unfit for human habitation may remain vacant but not rehabilitated or demolished. In that case they continue as a blighting influence in the neighborhood and as such constitute a problem to area-wide improvement. This, with the similar case of the non-conforming zoning use, remains a substantially unsolved problem in the drive to improve neighborhoods. When the technical, legal, and administrative solutions to the problem of the vacated, but not demolished, slum dwellings are obtained, it may well be appropriate to include this item in the housing ordinance.

The use of rooming units is sufficiently different from the use of dwelling units to justify a reasonable basis for classification and establishment of different but related standards. A recognized guide for such standards may be found in the "Proposed Housing Ordinance" of the APHA. In general rooming-house standards should be included as a separate section in the housing ordinance. The applied bility of such standards to hotels and similar accommodations should be defined in accordance with state law.