It appears likely that Montgomery County Executive Isiah Leggett intends to ignore the fact that his 85% hike in the County’s energy tax for the last two years is supposed to sunset in 2012 and allow the tax rates to return to their pre-2010 levels.  Members will recall that, in April 2010 with no warning to businesses which were well into their fiscal year budgets, Leggett proposed a 100% increase in the tax in order to raise $133 million.  Ultimately, the Council went along with an 85% hike in this tax, which businesses pay two-thirds of because of rates that favor homeowners. But, the Council also insisted that the staggering hike would be temporary-- it put a two-year sunset on the rate increase, which will come up on June 30, 2012.  Leggett, however, is increasingly indicating that he will submit an FY 2013 budget that is based on maintaining the rates that were adopted “temporarily” in 2010, and which will put the burden on the Council to find either spending cuts or other revenue measures if they plan to keep their word that those near-doubled rates would not be permanent. 

Weigh in before the deadline of Dec. 17th!  On Oct. 17, Gov. Martin O’Malley issued an executive order asking each State agency to conduct a 60-day review of agency regulations to identify those that should be changed or eliminated in order to help create jobs in the State. The State’s online feedback site is intended to give business owners and the general public an easy way to tell the Governor and State officials about unnecessary regulations and anything else that is on their minds.

To suggest a regulation for review, alteration or elimination, click on the following web address: http://easy.maryland.gov/wordpress/2011/10/18/share-your-feedback/. Then Click “Get in Touch” on the menu bar and enter your suggestion in the online form provided.

The Department of Permitting Services (DPS) and the County’s Fire and Rescue Service (FRS) have announced plans for DPS to assume responsibility for performing inspections of fire protection systems in all newly constructed buildings and renovations. The transition is under way presently, with FRS continuing to perform inspections while DPS hires and trains the staff necessary to assume full responsibility for new inspections on Jan. 1, 2012.

On Oct. 24, Maryland’s highest court, the MD Court of Appeals, ruled in Zi'Tashia Jackson v. The Dackman Company (No. 131, September Term 2008) that provisions in Maryland's Reduction of Lead Risk in Housing Act (the Act) which granted owners of certain rental properties immunity from personal injury law suits, under specified conditions, are invalid because they violate the Maryland Constitution.

The unanimous (7-0) decision states that Article 19 of the Maryland Declaration of Rights generally protects two interrelated rights: 1) a right to a remedy for an injury to one’s person or property; and 2) a right of access to the courts-- and that both protections are violated by the immunity protections in the Act, because they constitute an unreasonable restriction on the child’s right to a remedy and access to the courts.  The Court wrote:  “For a child who is found to be permanently brain damaged from ingesting lead paint, proximately caused by the landlord’s negligence, the maximum amount of compensation under the qualified offer is minuscule.  It is almost no compensation.  Thus, the remedy which the Act substitutes for a traditional personal injury action results in either no compensation (where no qualified offer is made or where a qualified offer is rejected) or drastically inadequate compensation (where such qualified offer is made and accepted).” 

Without stating so explicitly, the Court infers that its holding applies retroactively; it did, however, also explicitly hold that the invalid section of the Act is severable from the rest of the Act and that the validity of its remaining sections remains intact. 

The full extent of what this ruling means for property owners is somewhat unclear. Certainly, one reading that can be expected from personal injury lawyers and advocates is that property owners must continue to comply with all of the requirements of the Act, despite having been stripped of the limited liability protections that had been essential to their acceptance of those other requirements when the law was developed in 1994. AOBA will be in touch with members to determine what its approach should be on your behalf.  In the meantime, owners with lead-based paint concerns should consult with their attorneys about the most appropriate course of action. See the complete opinion here:  http://mdcourts.gov/opinions/coa/2011/131a08.pdf

Several members recently were denied requested rent increases for tenants holding a “Housing Choice Voucher.” AOBA contacted the Montgomery County Housing Opportunity Commission (HOC) to inquire if there had been a change in procedure or criteria for obtaining a rent increase. Click on this attachment to review HOC's explanation of the process.

Property owners operating within the WSSC service area should have received a WSSC email at the end of August, with a post card for response, regarding the unit count billing program. AOBA was only afforded the opportunity to review the postcard after it had been printed; once we did so, however, we raised several questions with WSSC. After careful examination, WSSC agreed that the post card did contain some confusing and inaccurate information and needed to be revised. The original email and postcard have since been recalled.

Members will note that the new postcard lists swimming pools as a commercial high flow use.  However: if the pool itself is used exclusively by and for the apartment community and is not operated as a distinct profit-making component, you do not need to apply for a waiver. Be advised as well, that WSSC says most pools are on a separate, pool meter account and billed twice per year-- and thus are not part of the unit count; so please check your records carefully.

In case you did not receive it, below is the most recent email and a NEW postcard that property owners should have received from WSSC, clarifying unit billing count practices for mixed use properties:

You may have received an e-mail sent on August 31, 2011 with an attached postcard regarding WSSC’s billing of “Mixed Use” Multi-unit Properties. Regretfully, that postcard contained errors; therefore, please disregard our first e-mail. We have attached the corrected postcard in this e-mail.

WSSC Standard Procedure (SP) CUS 11-01, which will become effective December 31, 2011, addresses how WSSC will bill certain “mixed-use” multi-unit properties. Specifically:

To continue to receive unit count credit for occupied residential units, by December 31, 2011, a separate WSSC meter is required for identified “high-flow” units.  Alternatively, customers can apply for a waiver from the designation of a commercial unit as “high flow.”

To continue to receive unit count credit for the number of occupied residential units, by December 31, 2011, you must certify as to (a) the number of occupied residential units, and (b) the number of high flow commercial units, and (c) the number of non-high flow commercial units per account.

You can view SP CUS 11-01 by clicking on this link: http://www.wsscwater.com/file/CustomerCare/notice_of_adoption8_11.pdf.

For your convenience, we will also send the postcard via regular mail.  In the meantime, to comply with SP CUS 11-01 requirements, PRIOR TO December 31, 2011, e-mail the requested information on the postcard to: mixedusebilling@wsscwater.com; or return the postcard to: WSSC Customer Relations, 14501 Sweitzer Lane, Laurel, MD 20707.

The Montgomery County Council approved a regulation that will prohibit smoking in certain common areas of multifamily properties and, where they exist, playgrounds connected to those properties. Specifically, the regulation prohibits smoking “in any common area in a multifamily residential dwelling; or within 25 feet of a playground area on privately owned property that has a primary purpose to serve the residents of more than 1 dwelling unit.”

The regulation requires that a property’s owner/manager do two things:

1. conspicuously post at least one sign in each common area and playground area. The sign does not have to be permanently attached, and must simply include either the words “No Smoking” or the international symbol for no smoking, or both; and
2. notify each unit in the property in writing that smoking is prohibited in each common area and playground area (if applicable).

Members may wish to err on the side of caution and proceed with creating and posting their own signage, and providing the written notification to each unit. The text of the regulation may be seen here and the Health Department’s website on the regulation may be seen here. The Health Department advises that enforcement of the regulation will be complaint-driven only-- it expects virtually all complaints to be about alleged smoking violators, not about failure to timely post signs or notify units and, should any arise, will be looking for good-faith efforts at compliance.

Member may wish to review the Sample Letter that may be used to inform your tenants and residents  about the new smoking  regulations in Montgomery County.  The Department of Health and Human Services (DHHS) should have info posted online http://www.montgomerycountymd.gov/smoke-free), prior to the  August 12, 2011 effective date of Board of Health Resolution 17-210.  The DHHS staff is also working on a plain downloadable No Smoking sign for your use.

Property owners with compliance questions may call 240-777-3831 during normal business hours.

Sustainable Communities Tax Credit Program - Eligibility allows an applicant that has proceeded with a substantial portion of a commercial rehabilitation project to apply for the sustainable community tax credit -- if the rehabilitation work had been approved under the federal historic tax credit. For details, see HB 601.