Code Attorney

This is by far the most creative conversion of a structure into a residence I’ve ever seen.  It’s a pool!  Can anyone top this?

I recently did an all day training for the Illinois Fire Inspectors Association and I found myself talking about using multiple codes for violations.  Fire inspectors often work with both the IFC and the Life Safety Code and have to decide which one to use.  I find that the IFC has superior administrative provisions and gravitate towards it for enforcement.  The Life Safety Code is a great code to follow when something is being constructed.  Beyond that, I sometimes find that using the IPMC is helpful when dealing with a problem property because it has very specific sections on the condemnation of unsafe buildings, structures and equipment.  In some jurisdictions, the building department writes the violations for the fire department or fire district.  In those cases, I’ve often seen the inspectors use Chapter 7 of the IPMC for fire code violations since it’s fairly comprehensive for common fire safety violations.  Ultimately it doesn’t matter which code you use as long as it’s appropriate to the situation and it meets the local requirements of your jurisdiction and state.  Being flexible is important because you may find that you hit a dead end using one code but the solution lies in another.  When I wrote the guide books for the IBC, IFC and IRC, I included a chapter on using the IPMC when unsafe structures were involved.  The IBC and IFC have some guidance for unsafe buildings but not to the point of condemnation. The IRC has nothing about unsafe structures.  Now that there are many half-built single family structures standing around, this becomes a problem since the IBC doesn’t apply to them.  I usually recommend using the IPMC (if you have adopted it) if the permit has expired.  If you don’t hve the IPMC, you better have a decent public nuisance ordinance.  Otherwise, the only alternative is a demolition lawsuit which in most jurisdictions can be a costly procedure.

Just when I think I’ve seen everything, an inspector sends me a picture she took after someone complained about a code violation. In keeping with the season, I am sharing it with all of you to see if anyone can think of what the charge would or should be.

Oh, Christmas tree, oh, Christmas tree

For anyone who is not aware of it, MERS was created by the mortgage banking industry to streamline the mortgage process by using electronic commerce to eliminate paper. Its mission is to register every mortgage loan in the United States on the MERS® System.  If you are a member of government, you can access the information for free by applying for a username and password at http://www.mersinc.org/ppc/index.aspx This will enable an inspector to find out which lender has a mortgage, the history of it which may help in finding out the status of a foreclosure and who is responsible for the property. Once again, I’m grateful to Kelly Anbach for sharing this information with me. Many of these loans have been transferred when lenders fail.  I have prosecuted cases where the lender has possession but doesn’t want to spend anymore money on a property that’s an albatross around its neck.  These new lenders obtain the loans in bulk and often have no idea what junk they are receiving.  In the meantime, the municipalities are trying to deal with these blighted properties and trying to get the lenders to take responsibility whether they want to or not.  Sometimes we have to threaten demolition if there’s no agreement.  The quicker we can get to a responsible party, the more likely it is we can salvage a property before it deteriorates and requires demolition.

The recent class I taught for the Suburban Law Enforcement Academy at the College of DuPage in Glen Ellyn was very well attended and the feedback was terrific.  Apparently the information covered was very valuable for the audience which was a mixture of police officers and code enforcement personnel.  Too often law enforcement officers are intimidated when dealing with corporate entities as defendants, mainly because they don’t understand the procedures that have to be followed. In class, I tried to demystify the corporate process by showing how easy it is to search for corporate information on the Secretary of State website and how to look up ownership at the Recorder of Deeds website.  Sometimes law enforcement officers don’t know how to find out who owns property.  It can be critical when dealing with rental property.  I also discussed how to use condemnation and demolition proceedings when trying to deal with problem properties as well as overcrowding issues and rental inspection ordinances.  I’m going to be teaching the class again on February 26, 2010 and may even be taking the “show on the road”.  I think law enforcement officials are eager to add new crime fighting tools to their techniques, especially with the number of vacant and abandoned buildings increasing in communities.

While preparing for a workshop I’ll be doing on 11/3/09 at the College of DuPage, Suburban Law Enforcement Academy, on the relationship between law enforcement and code enforcement, I came across a very informative publication at the website of the National Vacant Properties Campaign entitled Vacant Properties: the True Cost to Communities.  You can download it at http://www.vacantproperties.org/resources/reports.html It contains research on the relationship between crime and vacant and abandoned properties in neighborhoods along with a very good bibliography.

There’s a sad tale from Jacksonville, Florida about a woman who was found dead under 8 feet of trash in her home.  http://abclocal.go.com/ktrk/story?section=news/national_world&id=7054060 The rescue workers had difficulty locating the body because of the trash.  There’s an ongoing debate about how aggressive inspectors should be in enforcing the property maintenance code for interior violations.  Should a person be allowed to live in a “trash” house if he or she is not harming anyone else or should inspectors seek compliance against the wishes of the occupant? I think this case points out the dangers of ignoring these kinds of cases.  As I’ve said before, I’ve had some success by having the court issue an order for a cleanup with an inspector monitoring the progress.   Don’t we have an obligation to use the law to help people who because of a hoarding disorder can’t help themselves?

Tom Pahnke, an inspector for Manhattan, IL, commented on my recent post about people selling things out of their foreclosed homes.  His town has a best practices procedure that includes the police department in monitoring these homes.  He even notified an attorney for a lender when he noticed people offering items for sale on Craig’s List.  The attorney was able to get a restraining order.  Tom said he routinely looks at Craig’s List and local papers to see what’s going on.  Tom has generously offered to share a copy of his handout/presentation with anyone who’d like to contact him.  He can be reached at  tpahnke@VillageOfManhattan.org.

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.

If I want to spark a lively discussion in one of my classes, all I have to do is mention the topic of towing vehicles off of private property.  This is one of those issues that has yet to be resolved by the United States Supreme Court.  The issue is: does the Fourth Amendment require a search warrant to seize an abandoned vehicle on private property even though the property owner has been given a due process hearing?  There is a difference in opinion by the courts on what the answer is.  Based on the caselaw I have read, I take the conservative view and tell my clients, when in doubt, get a search warrant.

For example, Conner v. City of Santa Ana, 897 F.2d 1487(1990) found that the:

Warrant requirement of the Fourth Amendment applies to entries onto private land to abate known nuisances even if property owner is afforded certain “process” in connection with nuisance prior to entry.

In Illinois Redwood v. Lierman, 772 N.E.2d 803, 331 Ill.App.3d 1073, 265 Ill.Dec. 432,(Ill.App. 4 Dist. Jun 07, 2002) the court decided that

Business owners alleging  a violation of their civil rights by local governmental officials in that police had been authorized to seize, without warrant, one of their business vehicles from one of their private residential properties sufficiently pleaded a violation of the Fourth Amendment to stave off the officials’ dismissal motion; while the village in which the seizure occurred argued that the business owners had been given numerous hearings before the decision to seize the vehicle was made, the issue was not whether the business owners had been deprived of due process, but whether the village and its officers had illegally entered the residential property in order to seize the vehicle.

In Bezayiff v. City of St. Louis, 963 S.W.2d 225, 233+ (Mo.App. E.D. Nov 04, 1997) a city ordinance which permitted a warrantless entry by city officials onto private property to remove inoperable vehicles violated the Fourth Amendment, despite the contention that the process provided for in the ordinance was an adequate substitute for warrant.

On the other hand some courts have declined to follow this type of reasoning, for example Santana v. City of Tulsa, 359 F.3d 1241 (10th Cir.(Okla.) Feb 25, 2004) which involved the seizure of computer parts from the backyard of the owner as part of a nuisance abatement.  However, I should note that most of these cases do not involve the removal of vehicles.  Rather they involve the demolition of buildings or the removal of rubbish and garbage.
I think it’s very important for code enforcement officers to have a good legal opinion from your local jurisdiction’s attorney before towing vehicles off of private property without a warrant.  Don’t assume that your attorney has researched this area, ask him or her to check it out for you.  Who knows how long it will be before the United States Supreme Court resolves this dilemma.  Remember, the last really important case in building code enforcement, Camara v. San Francisco was decided in 1967.