Code Attorney

Sometimes you just need to laugh.

Given the technology that is all around us, an inspector needs to act as if everything he or she does is being videotaped.  Unfortunately one inspector in Largo, Florida didn’t follow this rule and ended up getting caught by an owner’s surveillance camera.  It shows the inspector walking right past a ladder.  His boss said he was “counseled” regarding this way of inspecting but no other steps were taken to discipline him according to a report by NBC Channel 8 in Tampa Bay.

When the chief building inspector went to the property, he found numerous deficiencies with the roof.  The public responded by arguing that cities just want the permit revenue but don’t want to spend time doing quality inspections.  This is very bad publicity because we justify what we do by asserting public safety. You can watch the video by following the link.

Morristown N.Y. recently settled a case with the Amish community over failure to follow the local building code. The Amish had contended they did not need to adhere to the code because of First Amendment freedom of religion considerations.  However, they ultimately worked out an agreement whereby criminal charges were dropped.  The town recognized that certain building techniques met the code and the Amish agreed not to use other ones that were not deemed proper.  Inspectors would install smoke detectors but there would be no enforcement subsequent to the installation. Amish communities are actually growing in the United States.  The Washington Times reported that other disputes have arisen in the past with Amish communities over codes but usually it involves waste disposal and outhouses.  This is the first time I have heard of the First Amendment being a defense to a building code.  I’d be interested to hear if any readers have experience with this issue.

I was recently contacted by a student doing a study about how code enforcement officers handle interactions with anti-government extremists. I’m fortunate that I haven’t encountered this type of threat very often but I promised her I would reach out to my readers to see if anyone has had to deal with this sort of problem. How have you handled it?

There was a very interesting story on National Public Radio yesterday about the relationship between mold and foreclosures. One realtor interviewed said,

“I have a release form that I use, and if the property has got a lot of mold in it, I don’t even let my own husband go in it without signing this disclosure because I don’t want the liability,” she says. “I had one really interesting [one]. It was the middle of winter. There were icicles coming out of the windows above the garage, no heat, but it was 80 degrees inside of the house because it was self-composting.”

The story said that in some states more than 50% of the foreclosed homes have mold and mildew issues.  I’ve seen a few of these usually involving burst pipes during the winter.  This story raises the frightening possibility that just by sitting vacant, nature takes over the structure when air conditioning and heating no longer are used.

Having the support of the judiciary is critical in obtaining compliance.  I’ve been very fortunate in my career to have judges who really understand how important code enforcement is in maintaining communities.  Usually when a judge is new, he or she knows little about code enforcement (it is a very narrow area of the law).  I view my role as trying to  educate them on the issues and the law as I prosecute my cases.  Once they see that the inspectors and I are trying to fairly enforce the code for the good of the neighborhood, they are usually supportive and listen closely to my recommendations.  Recently, a judge in Ohio chastized a violator, fining a corporation $129,000 for property maintenance violations in an apartment complex.  http://www.middletownjournal.com/news/crime/complex-hit-with-129-000complex-hit-with-129-000-in-fines-1023227.html The judge said

“I’m embarrassed and ashamed these conditions exist in the city of Fairfield … We build housing in Haiti, in Africa, but in my own backyard, we have people living in filth. It’s disgraceful and it makes me sad that the working poor don’t have a better place to live.”

Too often it is the working poor who suffer when landlords don’t keep up their property.  Judges play a crucial role in righting this wrong.

The Chicago Tribune had an informative article on the problem of half-built residences and the effect on neighborhoods on Sunday. http://articles.chicagotribune.com/2010-10-16/news/ct-met-half-built-houses-20101016_1_half-built-homes-construction-site-property-values We’ve been struggling with the problem for over 2 years now with spotty success.  The homes are half-built because the contractor or homeowner ran out of money and can’t get a new loan.  Many of the properties are in foreclosure.  Sometimes we’ve been able to get the exterior of the building finished so the house looks like it’s occupied even if the interior is not.  Usually though we have to wait until the lender takes possession so that we have someone with resources to do something.  Another option is to file an action for demolition if the property is unsafe or unsound after being open to the elements though the local jurisdiction has to be willing to spend legal fees on such a lawsuit.  Once the building permit expires, I’ve been using the property maintenance code for enforcement.  I’ve been arguing that once there is no construction going on, the structure is an “existing structure” of some type and, therefore, subject to the IPMC.  Another approach is to declare an unfinished building a nuisance under the local nuisance ordinance and then order that the nuisance be abated.  However, the lack of financial resources may make this impossible for the current owner.

There’s been a lot of press coverage about the mess in foreclosure land because many of the affidavits filed to support foreclosure actions were signed by people who had no actual knowledge about the mortgage documents.  Because of this, many of the banks have stopped proceeding on foreclosure actions until this issue is resolved.  The Wall Street Journal has an informative story about this latest embarassment to the mortgage industry at http://online.wsj.com/article/SB10001424052748704049904575554372238256744.html?mod=WSJ_hpp_LEFTTopStories This is not good news for local jurisdictions who have been waiting for distressed properties to be taken back by the bank.  I’ve seen properties where the owners have abandoned the property or don’t have the funds for the upkeep.  I’ve sometimes advised clients to be patient and wait for the sheriff’s sale so we can send a notice of violation to the lender once it is in possession.  With these delays, it means many properties will continue to deteriorate even more.

Often I get questions about deed restrictions and the role of the building official.  Deed restrictions (also known as restrictive covenants) may prohibit a number of things including the building of certain structures such as fences, swimming pools or sheds on the property of the homeowner.  When such a restriction is disregarded,  the building official  should not get involved unless a code violation has occurred, for example, building without a permit. The proper party to bring an action is the homeowners’ association.  This happened in Horn v. Huffman, a Kentucky case, where the homeowners built a ground pool in violation of the restrictions.  Eventually the association brought a lawsuit to force the owners to remove the pool.  The association won in court.

It is even possible that a building official might have to issue a building permit for something forbidden by the deed restriction if the application is proper.  While the building official may want to bring the applicant’s attention the fact that such a restriction exists, the building permit cannot be withheld based on the deed restriction alone.

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