Recently I was interviewed by MSN Real Estate for an article on working without a permit. The article just appeared online entitled “When Homeowners Go Rogue”. It’s a very thorough article about the dangers of working without a permit, hiring unlicensed contractors or failing to research a property before buying it. Much of the article is based on my interview with Marilyn Lewis, the author, and it mentions my book, “The Building Process Simplified”. It may be a worthwhile article to disseminate to the public in your local jurisdiction.
Santa Barbara is a wonderful place for a code training. I was lucky enough to be invited by the California County Building Offiicials Association to teach Legal Aspects of Code Administration on September 24th. I really enjoy traveling around the country because I learn so much. One of the big problems the building officials are facing in California are houses used for growing marijuana. There are a lot of mom and pop operations because of California’s approach to medical marijuana. Some unscrupulous individuals rent vacant houses, never letting on that they are not going to live in the house, and then fill it with plants. The electrical system is compromised with all of the power needed for such an operation and the owner is left with a big mess when the perpetrator moves on or is arrested. I wonder if anyone has ever used the zoning ordinances to prosecute anyone for illegal home occupation?
One of my pet peeves are building permits that don’t have a set expiration date. Most of the building codes have their permits expire 180 days after no work is done. However, this leaves open the potential for a permit to last a long time. For example, if a person pounds in a couple of nails every other month, it would be tough to prove in court that the permit expired. Recently, inspectors in my area did a survey to see what various jurisdictions did with permit expirations. I particularly liked Crystal Lake, IL’s approach. A permit for commercial construction lasts 1 year and a residential one lasts 6 months. In addition, there is a provision for a special permit with specific conditions. That would be very useful in a situation where a builder has been remiss in moving a project along. Recently, I had a case where as a condition of a sentence, the defendant agreed to a timeline of construction. It was not part of the permit because there was no provision for such a thing. It would have been helpful if the permit could have been issued with specific deadlines. The Crystal Lake ordinance also has provisions for extensions. I would rather see a set expiration date with a possibility of an extension rather than have to guess when a permit expired.
A recent article by an insurance group discusses how important it is to enforce tough building codes. As an example, it uses Hurricane Andrew. Insurance companies like tough enforcement because it saves the industry money. On a more personal level, it decreases the amount of destruction done to people’s homes and property by major weather events.
Multiple studies have been conducted which demonstrate the positive impact of modern, engineering- based building codes on the performance of residential homes during a severe high-wind event. Among them are: an IBHS study conducted following Hurricane Charley (2004); it found that adoption and enforcement of modern building codes reduced the severity of residential property claims by 42% and the number of residential property claims by 60%; and,
• a study commissioned by the National Association of Mutual Insurance Companies (NAMIC), which found that, if states in hurricane-prone areas had begun adopting and enforcing modern building codes in 1988, wind-related property losses could have been reduced by nearly $13 billion dollars.
Unfortunately, not all states have adopted minimum standards. The question is, why not?
An owner of a building in Chicago received a big shock when his building was torn down without his knowledge. He alleges in a civil lawsuit against the city that he was never served with papers for the demolition. A person with the same name received the papers instead. When the owner did not show up for the hearing, a default judgment was entered against him and the court ordered the building demolished. This is not that unusual a problem, especially when a structure is not owner occupied. I have seen warrants issued for the arrest of a person who had nothing to do with the violation but had the bad luck to have the same name as the offender. This is why obtaining proper identifying information about an offender is important. That would include a name, date of birth, height, weight, eye color, and in a perfect world, a driver’s license number. I think that some inspectors are a bit cavalier about this type of information but it can save the inspector and the local jurisdiction from a nasty lawsuit, like the one in this case. Often the best time to obtain identifying information is when a person applies for a permit. If things take a turn for the worse, the inspector already has the information.
When someone uses the defense of preemption, it means that a law is not valid because federal law does not allow states or local governments to regulate an area of the law. Federal law trumps state law if the defense is successful because the federal government has reserved the right to regulate a particular matter. Builders used this argument to attack the state of Washington’s building code. The Building Industry Association of Washington along with individual builders and contractors recently challenged the State of Washington’s Building Code, contending that the State’s 2009 requirement that new building construction meet heightened energy conservation goals was preempted by federal law, specifically The Energy Policy and Conservation Act of 1975 . The United States Court of Appeals for the Ninth Circuit held that the state of Washington had satisfied EPCA’s conditions, and therefore was not preempted. The court found that the Washington Building Code satisfies the conditions Congress established for enforcement of state and local building codes consistent with federal energy law. This is an important decision that gives local jurisdictions a voice in reaching energy conservation goals. The case can be found at 2012 WL 2369304.
A very important decision has just come down from the Court of Appeals of Minnesota involving the constitutionality of rental inspections. The case is McCaughtry v. City of Red Wing, 2012 WL 2077191, 2012. Landlords and tenants challenged the rental property inspection ordinance of the City of Red Wing which allowed inspections of property even if there was no evidence of a violation as long as inspectors obtained an administrative search warrant. The court said that:
Appellants have not established that the RDLC is unconstitutional on its face under the Minnesota Constitution on the ground that it permits the issuance of administrative search warrants by a judicial officer, without an individualized showing of suspicion that particular code violations exist in the rental dwelling to be inspected.
This case is significant given that rental inspections are crucial in fighting blight and crime. The landlords and tenants intend to appeal to the Minnesota Supreme Court so there may be further developments regarding this. It’s even possible this could go all the way to the United States Supreme Court.
One of the biggest problems facing local governments these days is finding the resources to maintain vacant properties. These homes are empty because of the foreclosure crisis and for the most part, lenders with mortgages on the property are reluctant to pay for the upkeep so the problem falls on the city, town or village. One would think that during the worst housing disaster in our life time, state government would help local governments deal with these properties by passing legislation that makes it easier to hold lenders responsible. Unfortunately, in Illinois, little is being done by the General Assembly. Bills that would help us fail year after year. At least now we have some information as to why it’s so difficult. The Chicago Tribune this week published a long article detailing how the Speaker of the House, Michael Madigan, represents numerous banks in his private legal practice. In Illinois he pretty well controls what legislation sees the light of day and what bills do not. When I travel out of the state to do trainings, I am ashamed to say that I am from Illinois when I hear what other states are doing. For example, in some other states, if the local government cuts the grass, the cost goes on next year’s tax bill. When the taxes are paid, the local government gets paid. That doesn’t happen in Illinois. There is a law the purports to allow this process but it was drafted as to be unenforceable. Illinois is becoming a punchline to a joke that isn’t very funny.
Every time I teach I learn something. I was in Cedar Rapids at the end of last week doing a presentation at the IowACE meeting. One of the attendees told me about how she uses Facebook to investigate her cases. She’s been trying to shut down an illegal speedway that the parties insist is not a racetrack. Turns out they have a community page to, guess what, save the speedway. I have used Facebook in prosecuting people for possession of marijuana and I know that police officers use it quite a bit but this is the first time someone has told me about using it for a code violation. It is a very good idea and gives inspectors another avenue to explore. I think it might be useful in cases involving illegal home occupations. Has any one else had success using social networking in this way?
One of the true joys of teaching around the country is that I learn so much from the people I meet. My recent trip to South Carolina is a good example of that. I had never been to a training facility for fire fighters before and Columbia, SC has one of the best in the country. I learned that when you see fire fighters using hoses on a building on the 10 o’clock news, that’s called “media” water. By the time that occurs, the building is a total loss and there’s no one left to rescue. A number of speakers talked of the need to fight fires smarter using modern science instead of relying on emotion and tradition. Part of being smarter is installing sprinkler systems in residential structures. However, South Carolina is going through the same fight over that provision in the model building code that other jurisdictions are. It is not going to happen for the foreseeable future there even though fire prevention personnel know it would save lives and property. South Carolina also heavily relies on volunteer firefighters. It came as a great surprise to me that the administrative chapter of the IFC has not been adopted by the State of South Carolina and it is left to local jurisdictions to adopt it, many of which do not. This creates a situation where fire inspectors cannot write tickets for violations of the fire code and must rely on the building official to enforce the code. This creates some very unacceptable dilemmas for these inspectors (in my opinion). I was impressed with their dedication despite all of the obstacles put in their way.
