Code Attorney

When I am in court, my focus is on the safety of the building that is the subject of my prosecution.  I don’t know that I’ve paid that much attention to the effect that the problem with the property is having on the long term health of the residents.  It certainly has been a concern when there is an immediate hazard but otherwise I haven’t really concentrated on what the implications are to general health.  That is why it was wonderful to have the opportunity to meet professionals for whom this is a great concern.

Amy McLean Sales from the National Center for Healthy Housing spoke at the conference about the seven principles of healthy housing.  They are:

Dry: Damp houses provide a nurturing environment for mites, roaches, rodents, and molds, all of which are associated with asthma.

Clean: Clean homes help reduce pest infestations and exposure to contaminants.

Pest-Free: Recent studies show a causal relationship between exposure to mice and cockroaches and asthma episodes in children; yet inappropriate treatment for pest infestations can exacerbate health problems, since pesticide residues in homes pose risks for neurological damage and cancer.

Safe: The majority of injuries among children occur in the home. Falls are the most frequent cause of residential injuries to children, followed by injuries from objects in the home, burns, and poisonings.

Contaminant-Free: Chemical exposures include lead, radon, pesticides, volatile organic compounds, and environmental tobacco smoke. Exposures to asbestos particles, radon gas, carbon monoxide, and second-hand tobacco smoke are far higher indoors than outside.

Ventilated: Studies show that increasing the fresh air supply in a home improves respiratory health.

Maintained: Poorly-maintained homes are at risk for moisture and pest problems. Deteriorated lead-based paint in older housing is the primary cause of lead poisoning, which affects some 240,000 U.S. children.

These principles apply to many of the homes that have been the object of court cases I have handled.

Amy also showed statistics that communities of color are more likely to live in unhealthy housing. I would imagine a lot of the housing is rental property not maintained by the landlords.  I asked her about resources to help people in this economic environment to fix properties in need of repair but she is as frustrated as I am because of the lack of money available to help people who need assistance to fix a deteriorating property.  The grim reality is that if we don’t do something now, they will be the properties we will need to demolish 5 years or 10 years from now.

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?

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 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.