Codes and Our Rights as Americans

Julie Ruth
September 6, 2012
COLUMN : Code Arena | Codes & Standards

Many years ago, the Building Officials & Code Administrators organization hosted a group of Eastern European code officials who were interested in learning about code administration in the U.S. After a month of observing code enforcement American style, they were asked their opinion of it. “Too democratic” was their response.

There are many freedoms we who have lived in the U.S. our entire lives take for granted, which people in other parts of the world do not necessarily enjoy. But sometimes the rules of this “too democratic” process can be a bit difficult to keep track of. At what point does one group’s rights end and another group’s begin?

Government representatives do have rights and responsibilities to restrict our actions to some extent. But there are specific criteria as to when those restrictions are to be applied. Sometimes elected government representatives get confused with regards to what rights, privileges and responsibilities they have. The purpose of this article is to spend a little time reviewing what are, and more specifically, what are not, valid criteria.

Government representatives, for example, cannot prevent us from having open discussions about the current administration. We are free to criticize them to our hearts content, if we wish to do so. Government officials also cannot tell us where to live or where to do business. They cannot restrict us from living in a certain area, or opening a business in that area, simply because of our race or religious beliefs. They also cannot refuse to issue us a building or zoning permit simply because they disagree with those beliefs.

It follows then that one of the basic tenets of U.S. code enforcement is that a code official cannot deny a permit application simply because he or she does not like the applicant or the building they wish to build, they disagree with what they stand for, don’t like the color or make of their car, etc. The permit application must be evaluated on the basis of its own validity–period. Let me restate that. In the United States, applications to government agencies for permits must be evaluated on the basis of their own validity, with no bias shown to other factors whatsoever.

Meeting Established Criteria
If the permit applicant has met the criteria that have been established by the jurisdiction for the granting of a permit, that permit must be granted. Zoning is a right. Receiving a building permit, or eventually a certificate of occupancy for a building, is a right. No government official–elected or otherwise–can deny these rights simply because they are uncomfortable with the permit applicant and his or her race, creed or orientation.

As an example, several years ago a jurisdiction denied the permit application of a manufacturer who wanted to build a rather large facility on property they had bought within the jurisdiction. The property was appropriately zoned for this type of commercial facility. The mayor and city council of the town had initially indicated support of the manufacturer’s plans and the boost it would give their local economy. Once the plans were announced to the public, however, several citizens of the jurisdiction opposed the facility due to concerns about its effect on the jurisdiction’s aesthetics.

In order to regain the public’s favor, the mayor publicly promised he would block the construction of the facility. Representatives from the mayor’s office told the code and fire officials, “Do not issue a permit for this building.”

This placed both the code and fire official in awkward positions. They knew if the permit applicant met the criteria established in the jurisdiction’s ordinances, they could not legally deny the permit. Doing so might expose the jurisdiction to a lawsuit, which was obviously not in anyone’s favor. At the same time, they valued their jobs and were concerned if they did not follow the directive given by the mayor’s office, they might lose them. Upon review of the plans for the manufacturing facility the fire official determined the jurisdiction’s water supply was not adequate to supply the code required fire suppression (sprinkler) system. So he denied the permit application.

The manufacturer filed an appeal. Through the course of the appeals process, the manufacturer agreed to provide their own water storage system for the facility, with sufficient water to meet the fire code requirement. Based upon this agreement, the appeals board found in favor of the manufacturer. The fire official and code official issued the needed permits and the facility was constructed.

Now in a case like this, the jurisdiction could have mandated certain criteria related to the aesthetics of the facility be met if they had put those types of requirements in place prior to the permit application being filed, and they were uniformly enforced for all commercial property proposed for construction in the jurisdiction after the adoption of those requirements. For example, it is not unusual for a jurisdiction to have designated a certain area within its community as historic. Quite often there are specific rules for any new construction that is proposed within that historic district, in order to maintain a desired characteristic “look” in the area. If that had been the case, the manufacturer would have needed to build his facility according to those specific criteria.

Same Rights for All
There are other characteristics, however, that cannot be dictated. For example, a jurisdiction can adopt specific regulations to be applied to all houses of worship, as long as they apply them consistently. But they cannot dictate which religious organizations can occupy those houses of worship, and which cannot. A few years ago a group of Muslims sought to purchase an abandoned Christian church in one of the Chicago suburbs. Some of the citizens of the suburb objected to the church being converted to a mosque. The building met all the criteria for a house of worship, however, and there was no basis for the suburb to deny the new group their required certificate of occupancy. So it was issued.

Every citizen of any specific community is entitled to the same rights. A code official also cannot deny a permit because the applicant did not use a testing laboratory or third party inspection agency that is owned by people he or she considers “their friends.” To restrict the permit applicant to using one specific laboratory, agency or supplier is considered restraint of trade.

Unfortunately sometimes there are government officials in the U.S. who challenge these restrictions. Elected officials may feel they have a right, or even a responsibility, to over step local ordinances to appease those who have put them in office. Quite often building officials will be reluctant to approve new types of products whose performance has not been proven within their jurisdiction. In some of these instances the government officials may truly not be aware that they are breaking the law.

Allowing a government official to decide to deny a permit based upon criteria that he or she has made up is very, very dangerous. If we allow this type of activity to go unchallenged, over time it will accumulate and build up like debris until we don’t even realize it should not be there in the first place. It’s important for us to stay diligent with regards to protecting our own individual freedoms and celebrating the freedoms of our fellow Americans.
Fortunately another aspect of the democratic society in which we live is freedom of speech.

When a government official oversteps the rights that have been endowed upon them by a specific jurisdiction, the citizens of that jurisdiction have the right to speak up and say “No.” When a businessman or manufacturers rights have been infringed upon, they have the right to appeal the decision and make their case against that infringement. These are the rights and privileges we enjoy as American citizens. Long may our banner wave.
 

Code Arena is brought to you by the America Architectural Manufacturers Association. Julie Ruth may be reached through AAMA at 847/303-5664 or via e-mail at julruth@aol.com.