RE: CROW Administrative Rules Review – Hardship Exemptions
Dear Solid Waste Regulators:
Northwest District Association (NWDA), the city-recognized neighborhood association representing much of northwestern Portland, has previously endorsed the City Council’s continuing efforts to get dumpsters off of our sidewalks. We continue to do so today, not withstanding the frustratingly slow pace of this effort.
That noted, the NWDA is troubled by several aspects of the draft administrative rule which will substantially weaken and undermine Council mandated efforts to remove these nuisance pieces of private property from the public right-of-way. Our concerns are:
- The proposed rule fails to make clear the notion that any hardship exemption, if granted, is a one-time relief for a particular property. We recommend that the rule explicitly state that, following the granting of a hardship exemption, any subsequent change of ownership or change in property use does not create a new right to apply for a new hardship exemption.
- The proposed rule is too generous to applicants with a broad or sustained history of documented CROW related complaints or violations. The hardship exemption is intended to provide a temporary, one-time path to compliance for small scale operators, not a permanent loophole to chronic violators. We recommend language which disqualified applications from entities or property owners with a prior history of CROW complaints violations at two or more locations. The “two or more” test should include the property, which is the subject of the application.
- In the portion of the proposed rule where applicants are required to show that they have considered “…all reasonable alternatives”, the rule should specifically require the applicant to explore the use of (perhaps multiple) smaller containers and / or more frequent pickup.
- The proposed rule includes an effort to assess applicant ability to pay for improvements. However, the proposed test is easily subject to manipulation by applicants – particularly in cases where the applicant is a corporate entity. Some examples:
- A newly incorporated business will have little or no income history. Because of this, they are likely to easily meet the “costs exceed 4% of GIA” test.
- While an applicant may have little income history, the applicant may be owned by an entity with substantial income history. Such a circumstance would not be revealed by the rule as proposed.
- The cost of required improvements could be funded from cash or other liquid assets held on the applicant’s balance sheet. However, the rule as proposed asks only about income history and makes no inquiries at all about the condition of the applicant’s balance sheet. Such a narrow inquiry would not reveal the presence of substantial liquid assets (and associated ability to pay) if same existed.
We recommend a rule which requires three year’s tax returns for both the applicant and for the entity which owns or controls the applicant, together with a current balance sheet for each, which would provide a far better basis to make a judgment about the ability of the applicant (and its parent, if appropriate) to fund the cost of improvements. The percent of AGI test should be expanded to consider other balance sheet based resources.
- The proposed rule does not include a minimum level of financial effort (in the form of expenditure on improvements) before a hardship could be considered to exist. If the applicant’s GIA value is very low, four percent of that figure will also be low even in cases where the arithmetic produces a comically weak standard of financial effort. We recommend language which sets the standard of financial effort at the greater of a set percentage of GIA or a fixed dollar amount.
- Clarify the “Letter of Noncompliance” section ((Part 5.3B(B)2)) to ensure that the operator(s) of any businesses will be notified of noncompliance along with affected property owner(s). Currently, the language is vague about who will be sent the noncompliance letter, saying only that BPS will notify “any other persons who reasonably appear to have an interest.” Since Rule 5.3B is titled, “Business Compliance and Enforcement: Containers in the Right of Way, the rule should specify that the non-complying business is specifically listed as a recipient of the Letter of Noncompliance along with the property owner.
Thank you for this opportunity to comment of the proposed rule. Every effort to meet your previously expressed commitment to City Council (given on February 23, 2011) that the “…rule would be in place by early summer…” is noted and appreciated. Unsightly storage of private property has continued to proliferate and obstruct pedestrian and wheelchair access on our community’s sidewalks. The clarification of the hardship clause will benefit all stakeholders.
Philip R Selinger
Safety and Livability Committee
Background Information on Dumpsters in the Right-of-Way: