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.
