Building Code Violations, Due Process and Fourth Amendment Rights

When the International Code Council started publishing the International Codes in the year 2000, one of the most important legacy codes in the jurisdictional arsenal was omitted, a code for the assessment, control and abatement of dangerous buildings. The last valid legacy code to deal with these types of structures and their internal systems was the 1997 Uniform Code for the Abatement of Dangerous buildings. This code and its predecesors was used successfully for many years to abate dangerous conditions and has held up in appeals courts over time as a valid method for the control of these kinds of community issues.

The Uniform Code for the Abatement of Dangerous Buildings was created to provide communities with a last ditch tool to abate the most extreme and excruciating property violations that have not responded to normal administrative code violation processes. The reason for this is that the code allows the actual taking of a property by using the administration’s police powers to remedy the dangers and assess the costs against the value of the property. Actions such as the taking of property from private owners are very serious, and the code followed a rigid step by step procedure to ensure property owner’s rights were not violated and due process requirements were followed.

Due to the lack of a corresponding code in the International Code family, and the obvious need for such a code, jurisdictions took two approaches to remedy the situation. Some jurisdictions simply adopted the 1997 legacy code as a separate code. Because of its track record in the appeals courts, they amended it very little if at all. The second approach was to incorporate it into the body of the International Building Code (IBC) as a separate section, usually titled Unsafe Buildings. There were problems with this in that the terminology of the two codes were markedly different, usually leading to more extensive amending of tried and true provisions that had stood the test of time and had been vetted by repeated appeals in the courts of the land.

Some cities unfortunately are ignoring the standard violation procedures contained in the IBC and are using the provisions of the legacy code immediately, which is a clear violation of the constitution and due process rights of citizens. The 3rd edition of Building Department

Administration (BDA), published by ICC, states: “Enforcement is a function carefully bounded by legal restrictions, techniques and requirements, including right of entry, use of coercion, statute of limitations, arbitrary authority, discretion, code mandates and legal due process.…….. Included in these requirements are pre-prosecution rites, such as preparation of evidence, proof that legal due process was adhered to and, normally, proof that all administrative remedies have been exhausted.” Prima facie evidence that all administrative remedies have been exhausted would be a clear and concise inspection report, citing the nature of violations, the location of violations, and the citations of the code section for each violation with a 30 day notice to obtain a permit to correct the violations. If this produces no results, a series of certified letters (normally at least two), including the legal description of the property, each with 30 day notice to obtain a permit to make the corrections, with violations cited under the standard provisions of the code. At this point a complaint would be filed with the court. Note that at the time of filing a complaint with the court, the violation process is typically at least 90 to 95 days out from the first inspection. The rest of the process would take place through the court of the jurisdiction, usually resulting in fines, court orders to comply, and possible jail time. Normally matters would at this point revert to the building safety department, a permit would be obtained, and the owner would still be given a reasonable amount of time to make the corrections and abate the violations. Building Department Administration, 3rd Edition, states the following for the notice of violation: “Whenever the municipal code requires notice to a party, notice must be given before a charge can be brought. It is a condition precedent, and any charge filed without the proper notice is subject to a motion to dismiss. The notice must contain each element required by the code provisions, usually the name of the responsible party, the location of the property, the nature of the violation, a deadline for correction and notice of the defendant’s right to appeal.”

Only when this procedure has been exhausted, and no compliance achieved, is the Dangerous Building Code allowed to be brought into play to achieve compliance. In describing the purpose of the legacy code, this intent is clearly stated: “ It is the purpose of this code to provide a just, equitable and practicable method, to be cumulative with and in addition to any other remedy provided by the Building Code, Housing Code or otherwise available by law, whereby buildings or structures which from any cause endanger the life, limb, health, morals, property, safety or welfare of the general public or their occupants may be required to be repaired, vacated or demolished.”