The earthquake tragedy in Haiti is a reminder of what can happen when there are no building codes or the existing ones aren’t enforced, when there are no building inspectors or a lack of oversight. The sight of collapsed schools, government buildings and residences is heartbreaking. I recently had a call from an inspector who said that his local jurisdiction was considering writing its own code instead of following the IBC because contractors were complaining that it cost too much to build following the IBC. Given the economic circumstances, they wanted a “less strict” code. Every time we sacrifice safety for monetary gain we are hoping that disaster doesn’t strike and reveal the dark side of less restrictive enforcement. Poorer countries lack the luxury of regulation and we can understand how things like this happen but we shouldn’t forget our homegrown tragedies like the collapse of the Hyatt walkway in Kansas City. We keep making the same mistakes because we forget what history teaches us. What happened in Hait is not a surprise. Newspapers recounted the collapse of schools in Haiti in 2008 due to poor construction. In 2007 the Department of Sustainable Development of the Organization of American States was approached about working to bring about a national building code in Haiti. You can read more about this problem at http://www.cnn.com/2010/WORLD/americas/01/12/haiti.earthquake.infrastructure/index.html or watch Earthquake in Haiti.
Sometimes a building code official may become a defendant in a mandamus action. A mandamus action is a lawsuit wherei nthe plaintiff tries to compel a governmental official or entity to perform a duty, such as issuing a building permit that has been wrongfully withheld. A recent case out of Minnesota, Pigs R Us, LLC v. Compton Township, 770 N.W.2d 212(2009,
describes a mandamus action where a township revoked a building permit that had been properly issued for a swine facility. The owner filed a second application that was not processed and the township passed an interim zoning ordinance that required the facility to have a special use permit. The owner filed a mandamus suit to compel the township to issue the building permit. Mandamus by definition only applies to non-discretionary acts. Issuing a permit is a ministerial act so the Court ordered the Township to issue the permit because the plaintiff complied with the law in effect at the time he filed it. It also found that the township had acted arbitrarily in passing the new ordinance. The township officials tried to claim that they were immune from the lawsuit but the Court found that the Municipal Tort Claims Act applied only to tort actions and not mandamus actions. The case was sent back to the lower court to decide if damages should be awarded in this case. Building code officials must always be aware that if they fail to perform a ministerial duty, a mandamus action is possible. This case demonstrates that the building code official cannot always rely on qualified immunity to get him or her dismissed from a lawsuit which is what the township board members sadly discovered.
