Codes & standards: Know your rights

Several years ago, the Building Officials and Code Administrators organization hosted a group of Eastern European code officials who were interested in learning about code administration in the United States. After a month of observing American-style code enforcement, they were asked their opinion of it. “Too democratic,” they responded.

Sometimes, the rules of this “too democratic” process can be a bit difficult to follow, and various parties get confused with regard to what rights, privileges and responsibilities they have. So, let’s spend a little time reviewing some of the rules. 

There are many freedoms Americans take for granted that people in other parts of the world do not necessarily enjoy. Our government officials cannot, for example, 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, who to live with or how many children we may have. 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 because they disagree with those beliefs.

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. 

The permit application must be evaluated on the basis of its own validity, period. Let me restate that: In the United States of America, government agencies must evaluate permit applications on the basis of their own validity, without bias based on other factors. If the permit applicant meets the criteria the governing jurisdiction has established, that permit must be granted. Zoning is a right. Receiving a building permit, or a certificate of occupancy for a building, is a right.

No government official can deny these rights simply because he or she is uncomfortable with the permit applicant and his or her race, creed or orientation.

Case in point

As an example: several years ago, a jurisdiction denied a manufacturer’s permit application to build a rather large facility on property that was appropriately zoned. The mayor and city council of the town initially supported the manufacturer’s plans and the boost they would give the local economy. Once the plans were announced to the public, however, several citizens objected to the facility due to aesthetic concerns.

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

This placed the code and fire officials in an awkward position. 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. At the same time, they were concerned that if they did not follow the directive given by the mayor’s office, they might lose their jobs.

After reviewing the plans for the manufacturing facility, the fire official determined that the local 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 its 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 permits, and the manufacturer built the facility.

Now in a case like this, the jurisdiction could have mandated the facility meet certain aesthetic requirements, if those requirements had been put in place―and uniformly enforced―prior to the permit application being filed.  Designated historic districts, for example, often have specific rules for new construction to maintain a desired “look” in the area.

There are other characteristics, however, that cannot be dictated. For example, a local government can adopt and apply specific regulations to all houses of worship, as long as they do so consistently. But it 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.

A code official also cannot deny a permit because the applicant did not use a testing laboratory or third-party inspection agency owned by the official’s “friends.” Restricting the permit applicant to using one specific laboratory, agency or supplier is considered restraint of trade.

Unfortunately, sometimes U.S. government officials challenge these restrictions. Elected officials might feel they have a right, or even a responsibility, to overstep local ordinances to appease the voting public. Quite often, building officials are nervous about approving new types of products whose performance has not been proven within their area of experience and responsibility. In some of these instances, government officials might truly not be aware that they are breaking the law.  

Fortunately, another aspect of the democratic society in which we live is freedom of speech. When a government official oversteps the rights and responsibilities of his or her office, the affected citizens have the right to speak up and say “no.” When an individual’s rights have been infringed upon, that individual has the right to say “no”.

These are the rights and privileges we enjoy as American citizens. Long may our banner wave!