It’s always disturbing when a code enforcement action is answered with a threatened or actual lawsuit on the part of the alleged offender.  Instead of focusing on the violation, everyone’s attention is taken up with the new lawsuit.  If a local governmental agency is in a tough economic position, it may decide to drop the enforcement action instead of incurring legal fees to defend itself against what is usually a frivolous lawsuit.  This isn’t fair to the homeowner who responds by correcting a violation or the inspector who is just doing his or her job.  When politics is thrown into the mix, it can get even worse.  In Camano Island, Washington, a commissioner, who was notified of a violation for building a deck without a permit and a possible wetland violation, has filed a lawsuit against the local planning director and the candidate who ran against her in an election, alleging that the code enforcement action was political in nature.  Inspectors need to make sure that they keep good notes if they are placed in a situation where there is political pressure from their superiors.  If an inspector feels he or she is being asked to do something that isn’t right, he or she should try to get a response in writing (e.g. e-mail) from the person applying the pressure so that there is a paper trail.  That way, if there is a lawsuit filed in the matter, the inspector can show that he or she was doing an action at the direction of a supervisor.  Of course, if the action is illegal, the inspector should always insist that the order is vetted by the jurisdiction’s attorney before it is implemented.  If the inspector’s request for a legal review is turned down, he or she has to decide whether keeping one’s job is worth going to jail for.   It’ll be interesting to see what happens in the above case.  Such situations usually end up with a settlement of some type.

Here’s an interesting television report regarding a landlord fined $129,000 for building code violations at a Fairfield, Ohio apartment building. http://www.wlwt.com/video/26069375/detail.html The news segment shows the deplorable conditions in the building.  Such a huge fine always catches my attention.  What I wonder if how often local governments actually collect the fines owed and whether the fines lead to compliance.  I’d love to hear from some inspectors about their experiences with assessing large penalties and their success or failure after sentencing. I was speaking to a purchaser of distressed property today who was chuckling about a court case in a city where the corporation counsel was bragging about a $200,000 fine she had obtained against a developer.  But, when the developer came to court, he said he’d declared bankruptcy, had no money to pay the fine or fix the building and was walking away from the entire mess.  My caller said that the judge may as well have made the fine 2 million dollars because the person was never going to pay a cent.

Building officials do not enforce homeowners’ association deed restrictions.  A deed restriction is a private agreement between a homeowner and the association connected with the development.  For example, many associations have restrictions on fences, swimming pools and other outdoor structures.  It is conceivable that a person could apply for a permit to build something in violation of the deed restrictions (also known as restrictive covenants) and be entitled to such a permit.  The building official should let the applicant know that such a restriction exists if the official is aware of it but ultimately, it’s up to the applicant as to whether he or she wishes to proceed.  However, if the structure is built in violation of the building code, the building official can enforce that violation.  The remedy for a violation of a deed restriction is a lawsuit between the association and the homeowner, such as occurred in Horn v. Huffman,  2010 WL 1404414.  In that case, a homeowner knowingly violated a deed restriction by building an above ground swimming pool contrary to the deed restrictions document. The homeowners’ association brought a lawsuit to enforce the restriction which was the proper course of action.

In a recent post, I discussed the foolishness of owners who don’t fix their rental property and end up facing civil liability judgments that could have been avoided if they had just followed the fire code.  The family of a victim of a porch collapse just reached a settlement for $2.7 million dollars in Chicago.  http://www.suntimes.com/news/metro/2931482,CST-NWS-porch1130.article The victim was trying to adjust a chair on the porch when he fell through the rails.  The Sun-Times reported that:

Through evidence discovery and motions, it was learned that almost six months prior to the incident, KMC’s liability insurance carrier warned the company that the large railing gap — 2 feet by 8 feet — should be covered with wire mesh, a release from attorneys said.

By the time of the tragedy, the repairs had not been made.  The public doesn’t really understand how code enforcement saves lives and reduces costs to owners.  A case like this demonstrates its importance.

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.