In my last couple of Tweets, I pointed inspectors to articles involving the explosion of the fertilizer plant in West Texas and a tragic fire in England. It’s a shame we wait until people die before there is interest in better prevention and regulation. It’s human nature to cut corners to save money which is why we need consistent oversight to prevent these foreseeable tragedies. After these terrible events which catch the attention of the public, we always see a flurry of enforcement but eventually that fades until the next preventable occurrence. These are opportunities though to educate the public and why safety inspections are so important.
One of the biggest problems facing local governments these days is finding the resources to maintain vacant properties. These homes are empty because of the foreclosure crisis and for the most part, lenders with mortgages on the property are reluctant to pay for the upkeep so the problem falls on the city, town or village. One would think that during the worst housing disaster in our life time, state government would help local governments deal with these properties by passing legislation that makes it easier to hold lenders responsible. Unfortunately, in Illinois, little is being done by the General Assembly. Bills that would help us fail year after year. At least now we have some information as to why it’s so difficult. The Chicago Tribune this week published a long article detailing how the Speaker of the House, Michael Madigan, represents numerous banks in his private legal practice. In Illinois he pretty well controls what legislation sees the light of day and what bills do not. When I travel out of the state to do trainings, I am ashamed to say that I am from Illinois when I hear what other states are doing. For example, in some other states, if the local government cuts the grass, the cost goes on next year’s tax bill. When the taxes are paid, the local government gets paid. That doesn’t happen in Illinois. There is a law the purports to allow this process but it was drafted as to be unenforceable. Illinois is becoming a punchline to a joke that isn’t very funny.
One of the true joys of teaching around the country is that I learn so much from the people I meet. My recent trip to South Carolina is a good example of that. I had never been to a training facility for fire fighters before and Columbia, SC has one of the best in the country. I learned that when you see fire fighters using hoses on a building on the 10 o’clock news, that’s called “media” water. By the time that occurs, the building is a total loss and there’s no one left to rescue. A number of speakers talked of the need to fight fires smarter using modern science instead of relying on emotion and tradition. Part of being smarter is installing sprinkler systems in residential structures. However, South Carolina is going through the same fight over that provision in the model building code that other jurisdictions are. It is not going to happen for the foreseeable future there even though fire prevention personnel know it would save lives and property. South Carolina also heavily relies on volunteer firefighters. It came as a great surprise to me that the administrative chapter of the IFC has not been adopted by the State of South Carolina and it is left to local jurisdictions to adopt it, many of which do not. This creates a situation where fire inspectors cannot write tickets for violations of the fire code and must rely on the building official to enforce the code. This creates some very unacceptable dilemmas for these inspectors (in my opinion). I was impressed with their dedication despite all of the obstacles put in their way.
A very worrisome lawsuit has been filed by the Federal Housing Finance Agency which oversees Fannie Mae and Freddie Mac, against the City of Chicago which recently passed an ordinance that requires mortgage holders to register vacant buildings 30 days after they become vacant or 60 days after a mortgage goes into default, whichever is later, pay a registration fee, keep the premises free of weeds or trash and make sure they are structurally sound.
The lawsuit says that:
….the city’s ordinance encroaches on the FHFA’s role as the sole regulator and supervisor of Fannie Mae and Freddie Mac. It says Chicago cannot mandate how the agencies handle vacant buildings for which they are the designated mortgagee.
The problem is that Fannie Mae and Freddie Mac own about 258,000 mortgages in Chicago so a considerable number of vacant structures would be unregulated if the lawsuit succeeds. Illinois law makes it almost impossible for a municipality to cut weeds, fix up property and add the costs to the property tax bill. This has really hampered our ability to address problem properties which is why ordinances like the one in Chicago are so important.
A number of inspectors have shown an interest in the case of the Aspen inspector charged with negligent homicide because a family died of carbon monoxide poisoning in a residence he had inspected and have asked me about the outcome. The good news for the inspector is that the case was dismissed in November but without a finding as to whether he was immune from prosecution under the law. Instead the case was dismissed because the indictment failed to show that the matter occurred within the time set by the statute of limitations. The prosecution failed to plead the date of the deaths in the indictment. It was an odd ending to a very troubling case. The civil suits are still pending.
One of the very unfortunate consequences of the economic downturn is the layoff of code enforcement personnel. Peoria, Illinois is facing the layoff of about 1/3 of its staff. I’ve had the good fortune of doing a number of training days in or near Peoria. As with many cities, it struggles hard to prevent blight. I fear a spiraling down effect in cities and towns where budget cuts leads to weaker enforcement which leads to more problems in neighborhoods that are already struggling. The inspectors I work with are already doing as much as they can to deal with problem properties. What will some of these towns and cities look like in 10 years because of the decisions we are making today?
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?