Code Attorney

Calling all inspectors.  Help me help a prosecutor decide what violations this picture contains

Up on a Roof

.  The person is storing tires on a roof and says they’re planters.  Illegal outdoor storage may be one violation but I’m looking for something creative

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.

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.

The earthquake tragedy in Haiti is a reminder of what can happen when there are no building codes or the existing ones aren’t enforced, when there are no building inspectors or a lack of oversight. The sight of collapsed schools, government buildings and residences is heartbreaking. I recently had a call from an inspector who said that his local jurisdiction was considering writing its own code instead of following the IBC because contractors were complaining that it cost too much to build following the IBC. Given the economic circumstances, they wanted a “less strict” code. Every time we sacrifice safety for monetary gain we are hoping that disaster doesn’t strike and reveal the dark side of less restrictive enforcement. Poorer countries lack the luxury of regulation and we can understand how things like this happen but we shouldn’t forget our homegrown tragedies like the collapse of the Hyatt walkway in Kansas City. We keep making the same mistakes because we forget what history teaches us. What happened in Hait is not a surprise. Newspapers recounted the collapse of schools in Haiti in 2008 due to poor construction. In 2007 the Department of Sustainable Development of the Organization of American States was approached about working to bring about a national building code in Haiti. You can read more about this problem at http://www.cnn.com/2010/WORLD/americas/01/12/haiti.earthquake.infrastructure/index.html or watch Earthquake in Haiti.

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.

Mick Vogt, an inspector with Villa Park, IL shared this video with me of “How to Construct a Snowman” from a zoning inspector’s perspective.  It’s delightful. http://www.gontramarchitecture.com/portfolio/Holiday_Video_2009/How_to_Construct_a_Snowman.swf

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.

Once again, I’m thanking Kelly Anbach, inspector for the Village of Hinsdale for finding out about a new program.  Detroit is working with lenders to keep foreclosed homes occupied with a special program, ROOF (Retaining Occupancy On Foreclosure) whereby former owners of these homes are allowed to stay in them if they pay for the utilities, a fee tied to their income and other costs. When the homes are sold, occupants can receive refunds of up to 50% of the monthly fees they have paid, if they have maintained the property and moved out on time. This sounds like a great way to keep the maintenance up on the property until a new owner takes over.  You can read more about it at:  http://www.freep.com/article/20091122/COL06/911220515/1322/Detroit-program-to-keep-people-in-foreclosed-homes

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.