Code Attorney

A former inspector for Aspen, CO faces criminal negligent homicide charges for the death of a family due to carbon monoxide poisoning.  A pipe from the boiler used to melt driveway snow was disconnected allowing carbon monoxide to enter the residence. The inspector had signed off on the work.  The city of Aspen, ICC, the county and the Colorado Municipal League have called for a dismissal of the charges.  The inspector is asking that the charges be dismissed due to the immunity granted to public employees by state law.  This is the first time I’ve come across such a case.  It is quite troubling and contrary to most of the caselaw in this country that discusses the public duty doctrine which states that inspectors owe a duty to the general public but not specific individuals in most cases.  This is a good example of how a tragedy can lead to some questionable law enforcement decisions. I would have a different viewpoint if the case involved bribery or some other type of unlawful behavior but there is nothing like that in this case.  I have seen many cases where there has been negligence by building inspectors but have never even considered that the proper remedy would be criminal prosecution.

The Chicago Tribune has taken on lenders over the devastation that has befallen neighborhoods while they sit back and let property deteriorate.  I’ve noticed a phenomenon in my practice when I’ve researched properties in foreclosure that have code violations. Lately I am seeing more and more foreclosure actions that are stalled after the lender obtains a judgment of foreclosure.  No sheriff sale takes place or the sale is canceled.  The lender doesn’t take the steps to get the deed and tells the local government that it’s not responsible for the property even though the owner is long gone.  The article in the Tribune discusses the consequences of such business practices:

Such legal maneuvers by banks, which in many cases either walk away from properties that aren’t worth selling or let foreclosure proceedings languish in an overwhelmed court system, have left thousands of dilapidated vacant houses in ownership limbo citywide.

At the same time, the financial industry is fighting against proposed legislation in Illinois that would make it responsible for the upkeep of a property once a foreclosure suit has been filed if the property is vacant.

If your building department is investigated by the grand jury, you have big problems.  Oakland, California’s building services department was the subject of a a grand jury report that blasted it for deficiencies in the areas of the abatement process; policies, procedures and training; information, communication and data management; due process (notices, liens, fees and fines); contracting; and appeals. Mercury News reported that:

The final report included several examples in which liens were recorded before issuing an abatement notice and before the property owner had a chance to respond or appeal the blight abatement order. The liens ranged from hundreds to tens of thousands of dollars and often had no relation to the actual costs of unpaid fines or abatement work.

The Mayor said that the department is undertrained and understaffed.

This is why continuing education is so important.   If people aren’t properly trained, they will eventually violate someone’s constitutional rights thereby subjecting themselves and the municipality to civil rights lawsuits and other charges.

There’s a bill pending in Illinois which would allow local governments to pass ordinances that would make lenders responsible for the upkeep of vacant properties in foreclosure.  Needless to say, the lenders are fighting the bill.  They’ve proposed a $50 fee per foreclosure that would go into a pool that local governments could draw from to reimburse themselves for their costs.  $50 per property, hmmmm, that’ll go really far. Maybe it’ll cover half a lawn being cut, once.   They must really think we’re stupid.  I’m disheartend that when I contacted my state rep, I received a nice “thanks for your e-mail” message, completely ignoring the expertise on this issue I’ve developed.  The banks say that they just wouldn’t be able keep up with all of the municipal ordinances that might be passed; maybe they would then know what it’s like to be an inspector who is desperately trying to reach a live human being at a lender when a property has 6 feet of water in the basement of a vacant home under foreclosure.  I wish I wasn’t so cynical about the political process.  I wish I believed it was possible that politicians would do the right thing and help local government preserve neighborhoods.  I want to believe that if they only knew about the problems we face, they’d give us some meaningful tools.  But, if they ignore our attempts to educate them, how can they make an informed decision?

It’s always heartening to see a city realizing that aggressive, not passive, code enforcement is what is necessary  to protect communities.  The New York City Department of Housing Preservation and Development (HPD) announced a new initiative, the Proactive Housing Preservation Initiative.  The ANHD Inc. website reports:

This agency shift from its old passive method of enforcement to more aggressive monitoring of building code compliance means that housing maintenance code violations, like leaky roofs, excessive vermin, etc., should be spotted much sooner. Furthermore, outstanding violations, which often remain unfixed for extended periods of time, should be remedied much more quickly with a more aggressive HPD monitoring the landlord’s efforts to clear the violations.

The problem is that too often these initiatives come into being because the problem has gotten so bad, and the buildings so dilapidated that it’s terribly difficult to get the property rehabilitated.

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.

If a local jurisdiction doesn’t have an effective enforcement system, whether it’s in court or at an administrative level, there will be no incentive for bad landlords to fix up their properties.  There can be a lot of flaws in the system, prosecutors who aren’t aggressive enough, political pressure, courts that are overburdened with a variety of cases, or just an ineffective process for collecting fines.  In Brooklyn, a landlord has amassed 8,000 violations but it has not resulted in an improvement in the buildings.  Attempts to remedy the enforcement process at the state level results in heavy lobbying by special interests to prevent change.  The tenants are the ones who suffer because they don’t have the lobbying power that those with polictical clout have.

Without commenting on the viewpoint of the creator, here’s a video of some interesting construction, like the house with a fire plug blocking the driveway:

Citizens who normally couldn’t gain the attention of anyone when they can’t get the attention of their representatives can go directly to the public by making their own films and posting them on You Tube.

Many times I’ve heard tales from code officials as I travel around the country about politicians who have problem properties and who are above the law.  Code officials are in a very difficult position when some of the worst properties are owned by people who vote on their budgets and salaries.  Consequently, it’s refreshing when a story appears about a local government offiicial who is being taken to court for property maintenance issues.  The Journal Sentinel reports that the Milwaukee County Board President is facing court action over five properties he owns including violations for rodent and roach infestation, loose window trim and moldy walls.  http://www.jsonline.com/news/milwaukee/110894119.html The city finally filed charges because it was unable to get compliance any other way.

I’m recently back from the Region III conference in Brooklyn Park, MN put on by AMBO.  This year I stayed an extra night courtesy of Mother Nature (my Southwest flight was cancelled due to the snow storm in Chicago) but it gave me a chance to visit with a great group of people.  One of the things that really impressed me is the difference between laws in a state like Minnesota versus those in my home state, Illinois.  Inspectors in Minnesota have more tools at their disposal in dealing with the foreclosure crisis because of their ability to clean a property up and collect the costs on the property’s tax bill.  In theory, Illinois inspectors can do the same thing but the way the 2005 law is written makes it so convoluted that I don’t know anyone who has been successful in collecting any money this way.  Putting a lien on property isn’t sufficient.  Years may pass before the property sells or the lien may be wiped out by foreclosure proceedings depending on local law.  What is the difference between states?  I believe Illinois is in the grip of special interests that defeat bills that would make it easier to get property cleaned up and help local jurisdictions recoup their costs.  Being able to collect municipal expenses on next year’s tax bill for a problem property with a process that is simple and direct is a terrific tool that I wish I could use in my practice. It would eliminate the helplessness inspectors experience during the gap period, from the time the homeowner walks away from a property and the time the lender takes title.   I envy my Minnesota colleagues.