Code Adoptions: What You Don’t Know Can Hurt You Derra Mattina, Attorney January 19 2017 13th Annual Local Government Seminar

What do our laws actually say? It is illegal to take more than three sips of beer at a time while standing. It is illegal to dust any public building with a feather duster in one city. It is illegal to idle or loiter anyplace within the corporate limits of one city for the purpose of flirting. There are many instances when we think we know what our laws say, but when we go back and read them, sometimes we get surprises. Here are some comedic examples from Texas.

Consequences of Code Adoption Issues Unenforceable requirements Noncompliant development Slowed enforcement methods Requirements that conflict with state law Ineffective safety measures Increased legal expenses Lawsuits

Appeals Did your City delete the Appeals section of Chapter 1? Has a Board of Appeals been designated in your code adoptions? Do you have a Board of Appeals appointed? How soon could that Board meet if an appeal was filed? Why the appeals section is actually a good thing Designate the Board…who has responsibility for taking appeals applications? Are there people on this Board in reality? There is a deadline for them to meet once an application is received (usually 20 days)

Blanks and Unintended Consequences See sample ordinance in front of code books for blank spots If not filled in, the section becomes unenforceable Carefully read Chapter 1 of any code you adopt – E.g., do you intend to create a Department of Fire Prevention? Appendices are now left out unless specifically adopted by ordinance

Retroactive Requirements Are you aware of requirements in new code editions that negate grandfather status? Do you have these occupancies in your jurisdiction? Balance your City’s desire to encourage development with costs of imposing retroactive requirements

State Laws Sprinkler requirement for single family housing leaves a loophole because of preemption Define “one or two family dwelling unit” to close the loophole

Apartment Complexes Times you want to treat apartments as individual buildings Other times you want to treat the complex as a single building Make it clear in your code adoption when each situation applies

Enforcement Options Do you know ALL of your enforcement options? Do you use all of them? Do you have an internal hierarchy or policy on the order you apply enforcement options? Do your enforcement options work?

Substandard Buildings There are three places requirements for this process come from: The Texas Local Government Code Chapter 54 and 214 The City’s adopted life safety Codes (e.g., ICC Codes) Other places in the City’s Code of Ordinances

Substandard Buildings (Continued) Is your process clear? Is your timeline clear, incorporating all 3 places that impose deadlines? Are your forms standardized to avoid even the appearance of discrimination? Do your notice letters include all the required information? Do your internal process include evidence production and maintenance?

Substandard Buildings (Continued) View the substandard building process through several lenses: Clarity Alternatives Notice Equity Clarity – Is the process clear to you and the public? Alternatives – Have you considered the other enforcement alternatives prior to starting this process? Notice – Does the owner have notice of the violations, what needs to be done to correct the violations, the consequences if the violations aren’t corrected…was the notice easy to understand and properly delivered? Did all contact with owner get put in writing? Equity – Were you really fair? What if you were the owner? If a judge asks if you tried other options before tearing down the building, what will you say?

Field Code Books Are your Code Books for enforcement officials updated to include your local amendments? If you contract out your code enforcement, does the contract reference your local amendments?

Cross References Does your City Code of Ordinances include old references in Chapters besides your building, fire, etc. code adoption Chapter? Examples: References to old codes in the “nuisance” definitions Designation of fire or building code officials that do not match reality Unrealistic qualifications for Board members in the Board of Appeals creation Chapter

Summary WHO can do WHAT? HOW do they do it? WHEN does it have to be done? 3 places for timeline requirements WHERE is the process in the Code so the public knows also? WHY do you do what you do? Don’t wait for litigation to review your code adoptions and internal processes

Questions dmattina@olsonllp.com 713-533-3800