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State official says proposed ordinance language is illegal



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May 02, 2012 - Oxford Village's attorney is recommending council grant its manager discretionary power to exempt properties, in certain "rare" and "costly" cases, from complying with the requirements of state building codes.

However, a state official claims this is illegal and could put the village's authority to perform inspections and enforce state codes in jeopardy.

"We have a single statewide code in Michigan," said William Benoit, chairman of the state's Construction Code Commission. "You must follow Public Act 230 (the state's Uniform Construction Code) and no way in the world can that (village) manager have that authority under Public Act 230. It's illegal."

"No one has the right – even the (local) construction board of appeals doesn't have the right – to waive the requirements of the code," he noted. "They don't have the authority to do that."

Village Attorney Bob Bunting's response to Benoit was "he's partially correct."

"I'm not saying he's wrong – he's partially correct. But you can't can look at these things as black and white," he explained.

Bunting argued the village should have enforcement discretion when it comes to the building codes just as it and other government entities already do in other matters.

"Even the (Attorney General's) office retains discretionary power whether to enforce a violation," he said. "As for local communities, we always retain prosecutorial discretion before charging someone with a violation and imposing criminal sanctions. That repose of discretion is given to us in our enabling laws."

Councilman Tony Albensi made it clear that Bunting's proposal is by no means a done deal. "Just because it's recommended by our attorney doesn't necessarily mean that this council's going to pass it," he said.

The village is currently in the process of considering adoption of eight volumes of new state/international codes as part of the municipality's ordinances. They include the state's construction code, residential code (including electrical code), mechanical code, uniform energy code, plumbing code and rehabilitation code for existing buildings, plus two international codes concerning property maintenance and fire prevention.

As part of this process, Bunting recommended adding the following language to the proposed ordinance amendments:

"The village manager, upon full disclosure to the village council, shall have the discretionary authority in enforcing village codes to ameliorate inadvertent and costly untoward compliance requirements, if in the village manager's sole discretion he justifies in a written record to council in advance, salient and cogent reasons for such ameliorations and that such ameliorations do not have any demonstrable deleterious health and safety impact as a result of the village manager exercising such reasonable discretion."

Ameliorate is defined as "to make better or more tolerable."

"The attorney definitely got his money's worth (by) putting some of those words in there," quipped Oxford Fire Chief Pete Scholz, who's opposed to Bunting's suggestion.

In his April 16 memo to council, Bunting argued such language is necessary to give the village some flexibility when applying these modern codes in a community with so many historic buildings and homes.

"By providing (this language) and giving the village manager limited discretion upon full disclosure to the village council in advance to 'make better' inadvertently and costly unintended (i.e. untoward) compliance requirements, the village council is recognizing the reality that, in some rare cases, strict adherence with one or more of these codes may result in an unwarranted unfairness and prejudice even to a responsible property owner," the attorney wrote.

Bunting described his recommendation as providing "a safety valve for some of the abuses that can occur in code enforcement (when) wise discretion . . . is not applied."

"I recommend this provision because I think it would promote both the intent of the codes as well as a responsible but symbiotic enforcement environment," he wrote.

In talking to this reporter, Bunting noted his main intent is to protect property owners from code enforcement in cases where it's unreasonable to expect strict compliance.

"Have you ever been subject to any enforcement of code violations? They can be very oppressive when they don't need to be," he said.

"All violations . . . must show a nexus between a violation and health, safety and welfare concerns. And if they don't, they're just part of more oppressive regulatory regimes (engaged in) empire building (through) bureaucracies that generate these codes. This is almost 1,100 pages of new codes (that the village is considering adopting)."

Bunting's proposing that "where there is no nexus" – "and sometimes it's not black and white" – the village manager, "provided there's full disclosure to council," have the discretion to waive code compliance.

"In my opinion, it's just bad, bureaucratic, oppressive laws where it doesn't fall within that nexus – where there is no prevention of health, safety and welfare (problems)," he explained.

In his memo, Bunting explained his proposed language "does not give the village manager a 'free hand' to ignore or simply relax a code provision at the expense of health and/or safety."

In fact, in order for the village manager to exercise this proposed "discretionary authority" to exempt a property from a code provision, there must "be no demonstrable negative impact to health and safety," Bunting wrote.

Furthermore, Bunting views his proposed language as a way to prevent code compliance from becoming a money-making venture for the village.

"This provision also has the positive effect, and in part why I recommend it, of making sure that the community does not become 'fee driven' in enforcing its code provisions where code enforcement officials are fee dependent," he wrote.

Despite Bunting's rationale, Benoit, who also serves as the building director and fire chief for neighboring Oakland Township, maintained this proposal is illegal with regard to the state's construction, plumbing, electrical, mechanical and residential codes.

He admitted he's unsure of the legality with regard to the fire code. "From the (standpoint of the) fire prevention code, I imagine there's probably a way that a lawyer could finagle it in there," Benoit said. "For the fire code, it's possible. I'm not a lawyer."

However, he has no doubt about the legality with regard to the other codes.

Benoit explained if a person feels "aggrieved" by the code or an inspector, there's already a process in place to handle that. It involves appealing to the local construction board of appeals, then the state Construction Code Commission and if necessary, circuit court.

Even then, these bodies only have the power to approve or deny "an alternative method of construction" that still complies with the code, not ignores it.

"Nobody has the right to waive the requirements of the code, period. That's in the (state) statute," Benoit said. "There's all kinds of (alternative) methods there. To simply say you don't have to comply – that's illegal."

"To give one person that ability (to waive compliance) – they don't even have that at the state (level)," Benoit added.

Benoit noted the financial cost of compliance is a factor that's never taken into consideration when reviewing and deliberating over these matters.

"There's no right to waive (compliance) because it's too expensive," he said. "Buildings cost money. That's never a consideration because (the code is) about public safety."

If the village council approves Bunting's recommendation and someone files a complaint with the state's Bureau of Construction Codes, a performance evaluation of the village's building department could be conducted.

Based on the results of this evaluation, the village would be told what problems, if any, to correct. If the village didn't comply, then the Construction Code Commission could strip the municipality of its authority to conduct inspections and enforce codes.

Benoit noted the state "always gives them a chance to fix things."

"No one wants to go in there and take their authority away, so they give them the option and ability to fix the problems," he said.

Benoit noted that in order for any of the aforementioned to happen, someone must first alert the state.

"There would have to be a complaint filed," he said. "That's the only way the state can go do a performance evaluation."

Legality aside, Benoit believes Bunting's proposal is a bad idea because it places too much power in the hands of the uninformed.

"Most village managers, city managers, township managers aren't familiar with codes," he said. "They just don't know. They don't have the knowledge."

That's why individuals who serve on local construction boards of appeal and the state Construction Code Commission are professionals, such as building officials, engineers, architects, etc., who are knowledgeable about construction and the state codes.

"Everybody making the decision is in the business," Benoit said. "Village managers are not in the business of (dealing with) construction codes. It's not their job."

And that goes for municipal governing bodies like village councils as well. "They haven't a clue (about codes)," Benoit said.

Having knowledgeable people making these decisions is important because the codes are so very critical in Benoit's view.

"Every time you turn on a light switch and you don't get electrocuted, that's us," he explained. "Every time you flush a toilet and it doesn't back up, that's us. Anytime there's a big storm outside and the roof doesn't fall on your head, it's because of codes.

"People just don't realize that, unfortunately. Not enough people know about the importance of codes. A lot of managers and councils just don't understand how important it is."

Benoit wasn't the only one opposed to Bunting's recommendation.

"My personal opinion is it puts a lot of power (with) the village manager – someone who's not trained as a building code official or construction specialist or anything like that – to make that decision," Scholz explained to council. "I've talked to numerous building officials in surrounding communities and they all come up with the exact same determination that I have."

Scholz presented the following scenario to illustrate his point. Say there was a property owner who felt complying with a certain part of the code was going to be too costly, thus causing him undue hardship.

"If they were to tug at the heart-strings of the village manager enough," Young could tell the village council, in writing, that he's going to "waive" enforcement of that portion of the code, Scholz said.

"It's okay if it's done today, (but) five years from now if something happens to that building and it collapses or someone gets hurt or there's a disaster of some sort, it pretty much puts it all back in your laps as far as you guys were the ones that decided to waive the code on that," Scholz continued. "I don't think (any one) of you want to sign your name to something like that to say (you're) willing to accept that kind of responsibility."

Albensi seemed to echo Scholz's concern.

"As a council member, I am not qualified at all to determine building codes and things like that," he said. "That's not my expertise, nor do I even want it to be. So, I personally wouldn't want that responsibility."

Tom Berger, who works as Orion Township's building official and serves on Oxford Township's planning commission, is also opposed to Bunting's recommendation.

"My opinion is I wouldn't circumvent the rules promulgated by the state," he said. "I don't know how you could circumvent them. Why would they want to circumvent the state rules?"

Berger, who also does some building inspections for the village from time to time, echoed Benoit's fear about the possibility of the village being penalized by the state.

"Your jurisdiction (to enforce codes) comes under Public Act 230. If you didn't follow their rules and you were evaluated by the state, you could lose your jurisdiction through that act," he said. "I would be careful not to put myself into that position."

"I try to abide by what the state has done as far as the rules that are handed to me," Berger noted. "I don't always like to drive 35 or 55 (miles per hour) in a (speed) zone, but that's what the rules are. I didn't write them."

CJ Carnacchio is editor for The Oxford Leader. He lives in the Village of Oxford with his wife Connie and daughter Larissa. When he's not busy working on the newspaper, he enjoys cigars/pipes, Martinis/Scotch, hunting and fishing.
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