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?
I received a request that I post this question for all of my readers to answer. Do any of your jurisdictions have an ordinance allowing you to shut down a business if it is occupying the space without a certificate of occupancy? Certainly if the work is hazardous, an inspector can use emergency powers to do so. However, most of the cases don’t fall into this category. The way I usually handle those cases is to recommend that the inspector ticket the owner every day the business remains open. If that doesn’t work in a couple of days, the inspector starts giving tickets to the managerial staff, and if that doesn’t work, the inspector gives tickets to the employees (it doesn’t usually go that far). In Illinois, a defendant who commits an ordinance violation can also be arrested. I actually had a case where we gave the person a ticket in the morning, told them not to reoccupy the space, and then arrested him in the afternoon when the inspector found the business still operating. If anyone has something to share, I will post it and give you credit.
There have been too many deadly fires this past week and the one factor they have in common is that each of the buildings had preexisting code violations. The fire in Chicago in which 2 firefighters died after a building collapsed demonstrated the hazard of vacant buildings. Eight squatters died in a fire in New Orleans in a building that had been cited for structural violations in 2007. In Yonkers, N.Y. a man died in a residence that had been illegally converted into multiple dwellings, including a basement apartment. It was reported at LoHud.com that:
The day after the fire, city inspectors visited the property and issued four summonses against the Walshes for illegally converting their basement into an apartment, illegally using the first floor of their two-family home as a boarding house and blocking fire exits, among other violations.
Owners often get angry at building and housing code inspectors because they feel the inspectors are interfering with their ability to use their property as they desire and because compliance with the code costs them money. Tragedies like these demonstrate why we have codes and why strict enforcement is necessary.
Here’s a delightful presentation on how to build a snowman from a zoning enforcement officer’s perspective: http://www.gontramarchitecture.com/portfolio/Holiday_Video_2009/How_to_Construct_a_Snowman.swf Happy New Year
Does your jurisdiction have a provision for adult entertainment establishments in your zoning code? If not, you may be at risk. It’s possible one could open up right next to the local family pizza parlor. Adult entertainment is an activity protected by the First Amendment but local governments have the right to regulate how the business is conducted specifically as to time, place, and manner. A regulation will be upheld if the ordinance is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication. That means that there has to be somewhere within the local jurisdiction where the activity is allowed. Usually, the use is restricted to an industrial areas or some other out of the way location. However, if your zoning code is silent on the subject, there may be some embarrassing consequences. Don’t assume this type of business is properly regulated by your zoning code without checking it. I have seen municipal codes that were missing the necessary provision.
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.
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 recent case of Armstrong v. Mayor and City Council of Baltimore, 2009 WL 217867, expanded the definition of “single housekeeping unit” to include an apartment with four bedrooms and a common area with kitchen and bath facilities shared by 4 unrelated people, each of whom had a separate lease with the developer. The apartment building was made up of 26 four-bedroom suites. The City contended that the apartments in the building were rooming units but because the ordinance did not have a strict definition of what constituted a single housekeeping unit, the court did not agree. The code provided that a dwelling unit may not be occupied by more than one family. A family was defined as no more than four unrelated individuals who live together. None of the tenants had access to each other’s bedroom. It seems to me that the lack of a clear definition of what constituted a “single housekeeping unit” led the court to make its decision. It highlights how important definitions can be in zoning ordinances. I had a case where the landlord chopped up a single family home into 3 units with a common kitchen. Thankfully, the code was clear enough that he was forced to return the home to its single family character after his appeal was denied. Unless a local government doesn’t mind this type of result, it may want to check the definitions in its zoning code.
