Code Attorney

Once again, Kelly Anbach, a whiz on the internet and inspector in Hinsdale, IL, has found something of interest that I’d like to share.  There is a conference in Washington D.C., the National Property Preservation Conference 2009, put on by the mortgage service industry.  It’s being held November 4 – 6, 2009.  Representatives of the mortgage industry, local government and the federal government are attending.  Here is the link https://www.safeguardproperties.com/register/dc09/?p=1 It looks like it will cover many of the issue we are all concerned about.

Of all of the structures I see without permits in court enforcement actions, decks have to be close to the top of the list. A recent case in Idaho, Wohrle, et al v. Kootenai County, 147 Idaho 267, 207 P.3d 998(2009) ended in a good result for the county. The plaintiffs built decks within the setback area of their properties without permits and without variances. After the fact they applied to the county for variances so they could keep their decks. The county said they hadn’t shown a hardship and denied the variances. The plaintiffs didn’t like that result and sued the county. They ultimately lost their case in the Supreme Court of Idaho because the court found they had not shown a hardship and their substantial rights were not violated. The Court very sensibly ruled that:

Respondents were not making lawful use of their properties when they built within the setback areas without first receiving a variance or building permit. In addition, even with the denial of the variance requests, Respondents are still able to use their property as permitted under state laws and regulations and county ordinances-all of which were in effect when Respondents purchased their properties. Respondents are not entitled to the granting of variances; instead, variances are issued upon the discretion of the Board. They are still able to put their property to reasonable use by using and enjoying a dock on Coeur d’Alene Lake, so no substantial rights have been prejudice.

Too often people on zoning boards feel sorry for the people asking for a variance because they spent a lot of money and it’s going to cost even more to come into compliance with the law. This court recognized that there is no reason to complain or whine if you acted illegally to begin with. Variances are not supposed to be issued because someone will be inconvenienced. In my opinion, the Board did the right thing in this case and so did the Court.

The National Vacant Properties Campaign has an interesting summary of different approaches being taken around the country regarding vacant and abandoned property. You can find the summary at http://www.vacantproperties.org/strategies/tools.html I especially like the Chula Vista, CA ordinance approach. This is a description if its ordinance.

The Abandoned Residential Property Registration Program is intended to address those properties that are vacant and financially distressed. The program requires mortgage lenders to inspect defaulted properties to confirm that they are occupied. If a property is found to be vacant, the program requires that the lender exercise the abandonment clause within their mortgage contract, register the property with the City and immediately begin to secure and maintain the property to the neighborhood standard.

They must also hire a local company to inspect the property on a weekly basis. The property must be posted with the name and 24-hour contact number of the company responsible for the weekly inspection, maintenance and security of the property. This will remove the City’s Code Enforcement Section from spending limited resources to act as the property manager. It also allows neighbors to have direct contact with a responsible party. It is hoped that the combination of observant neighbors and an accessible local responsible party will deter and arrest any potential deterioration of the property and thus preserve the neighborhood.

This seeks to address the time between the default on the loan and the sheriff’s sale when the lender actually gets title. Here’s a link to the actual ordinance. http://209.242.175.50/weblink7/docview.aspx?id=52169

I was visiting Milwaukee this past weekend when I came across an interesting article in the Milwaukee Journal Sentinel about a case in Florida where a district attorney in northern Wisconsin was litigating with the city of Fort Lauderdale over fines in excess of $700,000 on property worth only $200,000.  His mother had owned the property prior to her death and it had incurred damage due to a hurricane and eventually she ended up with enormous fines due to its condition and the work done without permits.  The son contended the large fines were excessive but the the federal court of appeals recently disagreed with him and stated:

In this case, the fine is properly characterized as a $150 per day fine for each day their house was not in compliance with the Fort Lauderdale Code. The Moustakises do not allege in their Complaint that a $150 per day fine for violating the Code is excessive, only that the cumulative fine of $700,000, which is more than the value of the house violating the Code, is excessive. But the $700,000 fine was created by the Moustakises’ failure to bring the house into compliance with the Code each day for 14 years. Rather than being grossly disproportionate to the offense, the $700,000 fine is, literally, directly proportionate to the offense. The Moustakises have not alleged any facts that demonstrate that the lien and underlying fines are excessive under either the Florida Constitution or the United States Constitution.

Last weekend I went to visit Frank Lloyd Wright’s home, Taliesen in Spring Green, WI.  When you realize that architects were still building Victorian homes when he began working, his genius is truly amazing.  It’s definitely worth the trip.  A person on the tour asked whether Frank Lloyd Wright ever had problems with building inspectors.

The tour guide said that he had, in fact, run into problems with building inspectors over the course of his career.  I did a little research and found some interesting information.  Here is an example from the book Frank Lloyd Wright and the Johnson Wax Building which discusses how Wright submitted to a load test for the “petals” holding up the structure. The state inspector required it to hold 12 tons.  That wasn’t good enough for Wright. (He had a very large ego).  Wright continued to have more weight added to the top.  The “petal” ended up holding 60 tons.

http://books.google.com/books?id=RalDFRIwofgC&pg=PA62&lpg=PA62&dq=Frank+Lloyd+Wright+and+building+inspectors&source=bl&ots=IffRCAO7dS&sig=qJo78FBSAgdweLa5WAUvr5DwvUU&hl=en&ei=9iSCSsWnC42AMsH2mZQL&sa=X&oi=book_result&ct=result&resnum=6#v=onepage&q=&f=false

Building officials have the power they need to work with geniuses like Wright by approving alternative methods of construction, design and materials under IBC 104.11 if the intent of the code is met.  Many inspectors are dealing with green technology and using this provision to approve techniques and materials that were unheard of 50 years ago.

John Caywood from Ft. Wayne, writes:

I am one of the authors of the City of Fort Wayne’s minimum housing ordinance. When there is a violation on a property, we send an “Order to Repair” to both the owner and the mortgage holder. They are required to attend a hearing to answer to the violations. If nobody shows up to the hearing, a civil penalty may be assessed against the property. We have the potential to assess up to $2500 per hearing. This must be paid when property taxes are paid or the property could go to a tax sale. This is getting the attention of lenders in our community. If lenders face the potential of losing houses in tax sales due to penalties racking up, the motivation is there to repair.

This approach works because the city is able to collect the fines because they’re part of the property taxes.  I only wish that Illinois had this kind of legislation.  Unfortunately, all we can do is lien the property and hope to collect it someday or try to collect it like any other judgment.   Readers, do your states allow you to collect debts as part of the tax bill?

A rental inspection ordinance that involves licensing landlords is a very effective tool in keeping property from falling into disrepair or worse.  It’s one of the best ways to keep a lid on crime in a multi-family building.  While many landlords oppose it at the beginning, successful ones eventually are won over as they see that negligent landlords have to raise their rents because they have to spend money on repairs.  This takes away a competitive edge that they have had since they didn’t spend money on normal maintenance.  Tenants benefit because they don’t have to be afraid of getting evicted if they complain about conditions as the local jurisdiction’s inspectors identify problem areas.  It’s unfortunate that in Illinois, a local jurisdiction needs to be a home rule community to enact a rental licensing ordinance.  There has been legislation proposed to allow all communities to pass these types of ordinances and I hope it becomes law someday.  It would make my efforts so much effective to have this option when addressing crime ridden housing.

I was in Peoria teaching Legal Aspects this week and met lots of enthusiastic inspectors eager for tips on how to more effective at enforcement.  One of the biggest problems we are all running into is who to enforce the code against in the in-between stage in a foreclosure.  Too often the owners are abandoning the property but the lender hasn’t taken possession yet and takes a hands off approach while the property goes downhill.  This time period can go on for months.  I’m also hearing that in some cases the lenders are walking away altogether. I’ve had some success notifying the lender under the theory that it meets the definition of “owner” under the IPMC.  At least the grass gets cut.  I’ve encouraged clients to begin demolition lawsuits when appropriate but that usually is for half-built structures.  Has anyone found any techniques that work well in this situation?  There are a great number of these buildings out there and are so detrimental to the neighborhood.

I have had some pretty awful trash houses filled with animals in my years of prosecution but this woman kept 150 cats in her mansion in New Jersey. The largest number of animals I ever dealt with were slightly over 100 Bichon dogs where the inspectors did an administrative search warrant. In the past if an inspector found a house like that, we’d put the owner in touch with a developer who would buy the property, tear the house down and build something new. With the current economy, that doesn’t happen and these cases can be real nightmares, especially if the owner doesn’t have the financial resources to hire someone for the cleanup. The residence has to be sanitized before anyone can move back in so it usually has to be condemned, often on the spot. I wonder if the local government will actually collect the fines?

http://www.dailyrecord.com/apps/pbcs.dll/article?AID=2009907100335

I am always surprised about the things people build without a permit.  Recently in court I had a defendant who had built an addition without any permits.  He couldn’t even claim ignorance because he was in the building trade.  He then complained when the inspector saw that his deck had been built without a permit.  The defendant’s excuse for that one was that he bought the house that way.  In another case, the homeowners only hired subcontractors who wouldn’t apply for permits.  One of the potential subcontractors asked too many questions, didn’t get hired and turned the owners in to the municipality.  In my book, The Building Process Simplified, I discussed the trouble people can get into when they cut corners and don’t do their due diligence before they buy property.  I only wish more people would read that chapter in the book before they begin construction.  Given the current economic circumstances I’m suspect that more and more people are failing to get permits in order to save money.  Inevitably this is going to lead to some tragic consequences.