Transcript PROPERTY MAINTENANCE CODES AND ENFORCEMENT

PROPERTY
MAINTENANCE CODES
AND ENFORCEMENT
MODEL CODE VERSUS YOUR
OWN CODE
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You may have your own code however this does create a disadvantage.
With your own code there may be a legal challenge in that you are relying on your
own experience and knowledge for the content. After all your own code is not a
nationally recognized code.
You typically will not have the resources for updating the code and the code would
become outdated.
The best approach is to adopt a model code. The former code organizations BOCA,
ICBO and SBCCI no longer exist, they combined to form the International Code
Council to create one set of model codes.
One of the codes is the International Property Maintenance Code.
ADVANTAGES OF ADOPTING A
MODEL CODE
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The model codes are written and approved by the code professionals.
The codes are revised every three years through a public hearing process.
Anyone may submit a code change, however the code committees that are
appointed by the ICC listen to proponents and opponent testimony and
then the committee votes on the changes. The action of the committee is
not a final approval.
The recommendations of the various committees are then presented at the
final action hearings to be voted on by the code professionals from across
the United States and various other countries. Anyone may challenge the
decision of the committee at the final hearings.
Adopting a model code provides your community with a code that has been
written through a formal process and is regularly updated. Many of the
revisions that are made are due to problems that have been encountered
(such as structural problems, fire event problems) or as a result of new
technology that will make a building safer.
These codes do stand up in a court of law.
INTERNATIONAL PROPERTY
MAINTENANCE CODE
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The International Property Maintenance Code is a code that is written for
adoption by Municipalities to assist a community to assure that properties
are maintained and do not deteriorate, thereby maintaining property values
and preventing blight.
The property maintenance code can be used in combination with
preservation design guidelines to maintain historic resources.
The property maintenance code provides recommendations on writing an
ordinance and establishes an enforcement authority.
The property maintenance code establishes an appeal process.
The code covers all types of buildings from single family residential to
commercial.
A wide variety of requirements are established in this code such as how to
handle unsafe structures, emergency measures, exterior and interior
requirements.
Your community may amend the code to meet some of the specific needs of
the community, however this must be done by means of a public hearing
process and there must be justification to the amendments.
METHODS OF ENFORCEMENT
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There are several methods to enforcing a property maintenance code. It is up to the jurisdiction
to establish these methods. One method, occupancy inspections, would need to be established
by ordinance and the others are a matter of policy.
DRIVE BY INSPECTIONS (OFTEN REFERRED TO AS WINDSHIELD INSPECTIONS): This method is
an effective way to enforce the property maintenance code from a streetscape perspective.
WALKING INSPECTIONS: This method allows the inspector to get a closer look at properties,
however the inspector must be familiar with the right of entry laws of the state. The property
owner does have rights and we must be very careful with this issue.
COMPLAINTS: A complaint system allows for anyone to call in to a department to place a
complaint with the jurisdiction regarding a property.
CITIZEN GROUPS: Some municipalities utilize neighborhood organizations to participate in
exterior inspections. The cities of Baltimore and Milwaukee have been effectively using this
method for several years. However, care must be taken in training the individuals that are doing
the inspections.
COMMISSIONS: In the case of Florissant, the Landmark Historic District Commission does have
the right by ordinance to notify the Building Commissioner of the city about any violations in the
historic district. In fact, the commission has the right to request that a stop work order be placed
on property regarding any violations of the historic ordinance or design guidelines.
OCCUPANCY INSPECTIONS: This method is the one method that does require a specific
ordinance to allow the city to inspect properties upon the sale of the property or change of
occupancy of the property.
METHOD OF REPORTING
INSPECTION RESULTS
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Now that the code has been adopted and you have the methods of inspection
established, how do you report the violations?
Obviously, the owner must be notified. Notification is typically done by regular mail
to the last known address of the owner. The notification must inform the owner as a
minimum what violations exist and the time period to make the corrections. Many
jurisdictions and states require that the actual ordinance violations be noted such as
an ordinance number or code section being violated.
Some jurisdictions allow the inspector to provide a notice to the owner on the spot if
the owner is present during the inspection.
Another method is to post the property in a conspicuous locations such as a door or
window.
Sometime during the reporting period the notice should state any appeal methods
that have been adopted.
APPEALS
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Most states and jurisdictions (also the codes themselves) require a method of appeal,
typically referred to as the “Board of Appeals.”
An appeals board should be made up of citizens of the community. There should be
minimum qualifications of the Board members or at least one or two members should
have knowledge of building construction and methods.
There needs to be an application procedure set up for the appeals board, with
minimum required submittals.
Minutes to appeals meetings typically are required to be recorded and transcribed
because this board is a quasi-judicial board.
The Boards’ decision typically stays all proceedings. In other words what the board
says stands unless a court of law overrides them.
This is why cases before the board must be prepared by the inspector in the same
manner as preparing for a court case.
WHAT’S NEXT?
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Once proper notification is given and the time frame to make corrections has gone by
a re-inspection is needed.
If all the code violations are corrected the inspection is closed out.
If violations are not corrected, the inspector must go to the next step.
Some communities such as Florissant, gives the owner one more opportunity to take
care of the violations. In Florissant’s case we give them 30 more days, however the
owner may request an extension of time in writing to complete the items if
circumstances warrant it. Then if the corrections are not satisfactorily completed a
court citation is issued.
Some communities issue a citation to appear in court if the initial completion date is
not met. However, this could become a political nightmare.
EXCERPTS FROM IPMC
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SECTION 107
NOTICES AND ORDERS
107.1 Notice to person responsible. Whenever the code official determines that there has been a violation
of this code or has grounds to believe that a violation has occurred, notice shall be given in the manner
prescribed in Sections 107.2 and 107.3 to the person responsible for the violation as specified in this code. Notices
for condemnation procedures shall also comply with Section 108.3.
107.2 Form. Such notice prescribed in Section 107.1 shall be in accordance with all of the following:
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Be in writing.
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Include a description of the real estate sufficient for identification.
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Include a statement of the violation or violations and why the notice is being issued.
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Include a correction order allowing a reasonable time to make the repairs and improvements required to
bring the dwelling unit or structure into compliance with the provisions of this code.
5.
Inform the property owner of the right to appeal.
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Include a statement of the right to file a lien in accordance with Section 106.3.
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107.3
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107.4 Penalties. Penalties for noncompliance with orders and notices shall be as set forth in Section 106.4.
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Method of service. Such notice shall be deemed to be properly served if a copy thereof is:
Delivered personally;
Sent by certified or first-class mail addressed to the last known address; or
If the notice is returned showing that the letter was not delivered, a copy thereof shall be posted in a
conspicuous place in or about the structure affected by such notice.
EXERPTS CONTINUED
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SECTION 111
MEANS OF APPEAL
111.1 Application for appeal. Any person directly affected by a decision of the code official or a notice or order
issued under this code shall have the right to appeal to the board of appeals, provided that a written application
for appeal is filed within 20 days after the day the decision, notice or order was served. An application for appeal
shall be based on a claim that the true intent of this code or the rules legally adopted hereunder have been
incorrectly interpreted, the provisions of this code do not fully apply, or the requirements of this code are
adequately satisfied by other means.
111.2 Membership of board. The board of appeals shall consist of a minimum of three members who are
qualified by experience and training to pass on matters pertaining to property maintenance and who are not
employees of the jurisdiction. The code official shall be an ex-officio member but shall have no vote on any
matter before the board. The board shall be appointed by the chief appointing authority, and shall serve
staggered and overlapping terms.
111.2.1 Alternate members. The chief appointing authority shall appoint two or more alternate members who
shall be called by the board chairman to hear appeals during the absence or disqualification of a member.
Alternate members shall possess the qualifications required for board membership.
111.2.2 Chairman. The board shall annually select one of its members to serve as chairman.
111.2.3 Disqualification of member. A member shall not hear an appeal in which that member has a personal,
professional or financial interest.
1111.4 Secretary. The chief administrative officer shall designate a qualified person to serve as secretary to the
board. The secretary shall file a detailed record of all proceedings in the office of the chief administrative officer.
111.2.5 Compensation of members. Compensation of members shall be determined by law.
111.3 Notice of meeting. The board shall meet upon notice from the chairman, within 20 days of the filing of an
appeal, or at stated periodic meetings.
111.4 Open hearing. All hearings before the board shall be open to the public. The appellant, the appellant’s
representative, the code official and any person whose interests are affected shall be given an opportunity to be
heard. A quorum shall consist of not less than two-thirds of the board membership.
EXERPTS CONTINUED
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111.4.1 Procedure. The board shall adopt and make available to the public through the secretary
procedures under which a hearing will be conducted. The procedures shall not require compliance
with strict rules of evidence, but shall mandate that only relevant information be received.
111.5 Postponed hearing. When the full board is not present to hear an appeal, either the
appellant or the appellant’s representative shall have the right to request a postponement of the
hearing.
111.6 Board decision. The board shall modify or reverse the decision of the code official only by
a concurring vote of a majority of the total number of appointed board members.
111.6.1 Records and copies. The decision of the board shall be recorded. Copies shall be
furnished to the appellant and to the code official.
111.6.2 Administration. The code official shall take immediate action in accordance with the
decision of the board.
111.7 Court review. Any person, whether or not a previous party of the appeal, shall have the
right to apply to the appropriate court for a writ of certiorari to correct errors of law. Application
for review shall be made in the manner and time required by law following the filing of the
decision in the office of the chief administrative officer.
111.8 Stays of enforcement. Appeals of notice and orders (other than Imminent Danger notices)
shall stay the enforcement of the notice and order until the appeal is heard by the appeals board.
COURT
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When a citation is issued a court date is established.
Prior to the court date, generally one or two days prior or the same day if
possible, the inspector has to re-inspect the property. If access is required
onto the property the inspector must make an attempt to do so. However,
typically you can not go beyond the front of the house on a sidewalk or
driveway (this is considered a public access) without permission from the
owner. There are some exceptions to this and should be discussed with
your city or county attorney.
The most important part of preparing for court is documentation,
documentation, documentation. Have the original reports with dates
mailed, posting dates, certified mail receipts and any correspondence from
the owner. Have photos if possible. A Judge often can not visualize
something or really know the severity of a case and photos do wonders.
Be prepared to testify and have the facts straight. Even the best of citizens
will come into court with a story that may not be factual. If the property
owner convinces the Judge that the inspector is wrong it is typically
because the inspector did not properly prepare for the case. What the
Judge says is final.
EMERGENCY MEASURES
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A community should have in their code a section for emergency
measures. In the next slide is an excerpt from the International
Property Maintenance Code. This section may or can be modified to
make it clear that demolition by neglect will not be accepted,
especially in the case of historic resources. Demolition by neglect
has utilized by a property owner to attempt to remove a landmark
structure. A community may enact ordinances to prevent this by
giving the code official the right to take emergency measures to
prevent demolition by neglect. However, this again, just like a court
case must be highly documented and there should be a hearing
before the code official or other community authority regarding the
property. If possible the city or county attorney should be present.
Notification of the hearing should be by posting, advertising in a
publication and certified notification to all interested parties
including any lien holders. Florissant actually places a placard in the
yard of the property involved.
EMERGENCY MEASURES
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SECTION 109
EMERGENCY MEASURES
109.1 Imminent danger. When, in the opinion of the code official, there is imminent danger of failure or
collapse of a building or structure which endangers life, or when any structure or part of a structure has fallen
and life is endangered by the occupation of the structure, or when there is actual or potential danger to the
building occupants or those in the proximity of any structure because of explosives, explosive fumes or vapors or
the presence of toxic fumes, gases or materials, or operation of defective or dangerous equipment, the code
official is hereby authorized and empowered to order and require the occupants to vacate the premises forthwith.
The code official shall cause to be posted at each entrance to such structure a notice reading as follows: “This
Structure Is Unsafe and Its Occupancy Has Been Prohibited by the Code Official’ It shall be unlawful for any
person to enter such structure except for the purpose of securing the structure, making the required repairs,
removing the hazardous condition or demolishing the same.
109.2 Temporary safeguards. Notwithstanding other provisions of this code, whenever, in the opinion of the
code official, there is imminent danger due to an unsafe condition, the code official shall order the necessary
work to be done, including the boarding up of openings, to render such structure temporarily safe whether or not
the legal procedure herein described has been instituted; and shall cause such other action to be taken as the
code official deems necessary to meet such emergency.
109.3 Closing streets. When necessary for public safety, the code official shall temporarily close structures and
close, or order the authority having jurisdiction to close, sidewalks, streets, public ways and places adjacent to
unsafe structures, and prohibit the same from being utilized.
109.4 Emergency repairs. For the purposes of this section, the code official shall employ the necessary labor
and materials to perform the required work as expeditiously as possible.
109.5 Costs of emergency repairs. Costs incurred in the performance of emergency work shall be paid by the
jurisdiction. The legal counsel of the jurisdiction shall institute appropriate action against the owner of the
premises where the unsafe structure is or was located for the recovery of such costs.
109.6 Hearing. Any person ordered to take emergency measures shall comply with such order forthwith. Any
affected person shall thereafter, upon petition directed to the appeals board, be afforded a hearing as described
in this code.