SAN ANTONIO – Two of the 11 apartment complexes forced to pay for their own extra code enforcement inspections are asking a judge to throw out the new Proactive Apartment Inspections Program.
The separate owners of Spanish Oaks Apartments, a 125-unit complex at 1818 NE Loop 410, and Station at Elm Creek Apartments, a 324-unit complex at 5050 Fredericksburg Road, filed a lawsuit Monday in the 57th District Court. The lawsuit, filed by attorney David Dilley, claims the program, as well as enforcement provisions in the city’s building code, are unconstitutional and go against Texas law.
“It’s also incredibly vague,” Dilley said of the law. “It’s full of all sorts of land mines, and it provides a ton of discretion on code enforcement. And that discretion, as we’ve already discovered, can pigeonhole a property owner into a fine driven purgatory where they’ll never be able to get out of it.”
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The San Antonio City Council voted near-unanimously in March to approve the new program, which was born out of the attention that properties with numerous citations, like Seven Oaks Apartments, attracted in the summer of 2022.
Apartment complex owners who receive three or more “designated” citations within a six-month period have to register for the PAIP. Once in the program, these “bad actor” landlords would have to pay $100 per unit annually and have their complex subject to at least half a year’s worth of extra monthly inspections.
To get out of PAIP, a complex has to go six months without getting more than two citations.
But Dilley writes in the lawsuit that “an overzealous code enforcement officer can easily find 2 violations in 6 months, thereby extending a property commitment to this purgatory.”
Properties receive code enforcement citations if they don’t fix an issue they’ve been notified about within a “reasonable time,” typically about 10 days. The designated citations tracked for the program are for code violations relating to safety and basic habitability, such as structural issues, electrical problems, sewer backups, lack of heat, and pests.
The city began tallying eligible citations on April 2. Spanish Oaks received four citations, which propelled it into the program, Dilley said, and the Station at Elm Creek received 12.
They’ve received more citations since being put in the program, he said.
The two complexes have to pay fees, which Dilley argues are really fines, of $12,500 and $32,400 to be in the program.
“It hasn’t bankrupted them yet,” he said. “But the fear is that this is just the beginning of the program.”
He also said he foresees the cost of the program being passed onto the tenants “in the very near future.”
The attorney also argued that the city’s program only allows owners to appeal their citations to the Development Services Department, the same department that issued them.
However, while the ordinance says a property owner must appeal a citation in writing within 10 days to the DSD director, that appeal only pertains to the “program point,” or whether it counts toward the PAIP.
The actual citation and its process through municipal court is separate, the ordinance states. If the citation is thrown out in court, the associated “program point” is as well.
A city spokeswoman provided an emailed statement from City Attorney Andy Segovia.
“The City is aware that a lawsuit challenging its Proactive Apartment Inspection Code has been filed on behalf of two apartment complexes who have violated the code. The City believes that the Ordinance, enacted to protect residents from dangerous living conditions, is constitutional and conforms with both federal and state laws. The City has not yet been served with this lawsuit but will review and analyze the challenges raised.”
As of Friday evening, the spokeswoman said the city still had not been served.