Salted with Sharks

Strict Construction: The New County Property Maintenance Code

In Breaking, Community Alert, Gov't Watch, Infrastructure and Planning, Law & Order, On and off the Apron, Politics, Uncategorized on March 17, 2013 at 8:08 pm

By Emily Votruba

Photograph by Robert Bruce Bushway

Photograph by Robert Bruce Bushway

At the February 19 County Commissioners meeting, the commissioners voted 6 to 1 to adopt the International Property Maintenance Code (see link below). The vote occurred during the department head reports portion of the meeting and was not on the agenda. After a presentation by Robert Theobald and Richard Fast about the so-called “question mark” building in Honor, Homestead Township commissioner Frank Walterhouse made a motion to adopt Ordinance 2013-001. The lone nay vote was from Elberta’s own Don Tanner, chair of the County Commission.

According to county administrator Chris Olson, Olson and a committee consisting of Frank Walterhouse (Homestead), Glen Rineer (Benzonia), county attorney Richard Figura, and building official Bert Gale recommended adoption of the code. This committee also “tailored” the ordinance at the time the code was adopted at the meeting, by filling in blanks in the code dealing with the maximum height for grass, the range of fines for noncompliance ($100 to $500 a day), the enforcement officer (building official Bert Gale), and the dates for seasonal rules such as grass height (May 1 to November 1) and the period during which a dwelling must be heated to 68 degrees (October 1–May 1).

According to a letter from Figura, violation of the ordinance was to be considered a civil infraction. The fines will be levied as a lien on the property owner’s tax bill, and other penalties could include eviction, property seizure, and/or demolition.

Correspondence from Richard Figura read at the meeting said condemnation and demolition of properties in violation would be a “last resort.”

Reached by phone last week, Olson said he was aware of a “lively discussion” having taken place in Blaine Township and Thompsonville about the code adoption. “The code is fairly commonsense provisions,” he said, and he doesn’t expect it will be tweaked any further. “This is not anything extraordinary. No provisions are unreasonable. It’s basic property maintenance [guidelines] for a habitable structure.”

Others consider it anything but basic.

In a phone interview last Monday, Don Tanner, commission chair and representative for District 7 (Blaine, Gilmore, Joyfield, Weldon, Thomsonville) explained his solo no vote. “This is an example of too much government power reaching into people’s day-to-day lives. This is like trying to enforce subdivision rules on a rural community. I don’t think there’s a house in this county that would pass unless it was built yesterday and it still might not,” Tanner said. “I don’t think my fellow commissioners read that code and understood how perverse it really is.”

Mark Evans, a Joyfield Township trustee also reached by phone, concurred: “It’s such an overreach. They say it’ll only be [enforced] as needed. But all the laws are there and if somebody in the future wanted to be a real pain they could be. Practically every building in the county would be in violation to some degree. It just amazes me. Why would we want to take on some international code?”

The detailed ordinance, which Olson said has been adopted by other communities in Michigan and around the world, addresses such things as peeling exterior and interior paint, cracked interior plaster, roof leaks, number and position of interior lighting fixtures, minimum room sizes, and proper garbage disposal in addition to construction materials, structural load, plumbing, egress, and electrical hookups. The code applies to existing structures as well as new construction, and was considered in force as of the newspaper publication of the notice of adoption.

Tanner and Evans both cited the strict verbiage against rodents. “If you’ve got a crack in your foundation big enough for a mouse to get in, you’re in violation,” said Evans.

Rodents 2013-03-15 at 9.05.35 AM

rodents 2

“If you have a hot tub that’s over 24 inches deep and you don’t have a 48-inch fence all the way around it, you’re in violation, and on and on and on,” he continued. “I’m sure all the commissioners’ homes are out of compliance. Most people are breaking 10 to 15 laws a day without leaving their house.”

Given the large number of existing properties that are in violation of the code, Tanner said the question of equitable enforcement is “one of the most troubling aspects” of the new law.

So why did this act get passed, and with so little apparent review? Evans said he believed the ordinance was passed specifically to deal with the “question mark” building in Honor (hereafter the ? Building). “It’s like dropping a nuclear bomb to get rid of a mole problem.”

In separate phone calls, Chris Olson, Glen Rineer, Roger Griner, and Don Tanner all mentioned the ? Building as a potential target of the new law. (Frank Walterhouse could not be reached for comment.)

“The purpose of the ordinance is to have something in place to deal with dangerous buildings,” Olson said. “We’ve seen exposed wiring, unvented hot water heaters, carbon monoxide leaks. One of the biggest examples is the ? Building in Honor. There have been allegations that the building harbors animals. We’ve been approached by the community to assist with that.”

Glen Rineer, Commissioner for Benzonia Township, said the ordinance “gives [the county] a tool to help the municipalities with control of dangerous buildings.” He said he too had heard rumblings of complaint. “The [IPMC] is a very comprehensive and coverall thing and I understand many people are concerned that it has implications even inside the home. It’s not meant to be a comprehensive policing. It’s a matter of how it is used. The enforcement will be taken on a case-by-case basis. We have no intention of going out and looking for violations.” He mentioned the appeals board, which is the same as the construction code board of appeals.

City of Frankfort and Crystal Lake Commissioner Roger Griner also cited the noncomprehensive intent of the law. “My main reason for voting for [the ordinance] was to have some tool to do something about buildings that are completely abandoned, and the prime example is the old store in Honor. It’s been 14 years we’ve been trying to find someone responsible and this seems to be a tool that would work. I’m also hearing though that it’s much more encompassing and could well be subject, if we had a real close interpretation of the law, to rental properties or summer homes that are vacant for more than a month. If that’s the case then I’m sure we’ll have to regurgitate [the law] a little. At this point the county does not run around looking for problems. People with high grass or trees that need  trimming—that could be in the code, but I don’t think it’s the intent of any of the commissioners who voted for it to do anything about that.”

Griner said he did not know of any intention to amend the bill this time, but “it might be something that needs to be discussed some more, from what I’m gathering.”

Chris Olson said enforcement would take place on a complaints-made basis. “The building department is busy and not out looking for these violations.” Once the building official has determined that a property is in violation Olson said any fines collected would be used to cover expenses related to enforcement.

“I understand wanting to deal with the building in Honor,” said Tanner. “Maybe it needs to be torn down, I haven’t been in there. Part of this as I see it is that Honor doesn’t want to spend its money to do it, it wants to spend the county’s money to do it. Here’s the funny thing: I heard it mentioned, ‘Well we could take care of the question mark building and then repeal it.’ I don’t know that I’d want to be in front of a judge explaining that we wrote a law to affect one property and then repealed it as soon as we dealt with it. Wouldn’t that be a violation of the 14th amendment, equal protection under the law? I’d have to be on [the property owner’s] side regardless of what he did.”

Another troubling aspect of the law, according to Tanner, is its regressiveness from an ecological standpoint. “You can’t use recycled materials. No straw bale, no cordwood, no tires. There has to be a point where we have to get our foot off people’s throats and let them live.” In fact the ordinance does allow for use of alternative and/or used materials provided they are approved by the building code official and deemed to be of the same quality as the pre-approved materials outlined in the code. (Section 105)

A matter of possible concern to farmers and even gardeners is that the ordinance specifies requirements for garbage disposal but is silent on recycling containers and compost. “Garbage” is defined as “The animal or vegetable waste resulting from the handling, preparation, cooking and consumption of food” and “All exterior property and premises, and the interior of every structure, shall be free from any accumulation of rubbish or garbage.” (Section 308.1) Interpreted strictly, this would seem to rule out backyard compost piles, though not necessarily closed compost containers.

In cases where local ordinances are less strict, the new county ordinance would override them. For example, last year Elberta passed a lawn maintenance ordinance that specified that no grass or weeds could be more than 8 inches high. Setting the limit at 6 inches, the county new ordinance is stricter. The new law reads thus:

Screen Shot 2013-03-17 at 8.04.08 PM

Like the Elberta ordinance, the county’s allows for a county worker to enter the premises of a property in violation and cut the grass/weeds at the owner’s expense. (Full disclosure: This writer has been in violation of the ordinance but has not yet received formal written notice of violation. A village worker did however mow the the parkways surrounding her house last summer, destroying some of her plantings in the process.)

“Why are we going to give this kind of ammunition to a couple of neighbors who just plain don’t like one another?” said Tanner. “‘This guy’s grass is 6 and a half inches long…I’ve been measuring it every morning.’ The biggest polluters in the country aren’t diesel trucks. They’re weed wackers and lawn mowers. So what if the grass is 10 inches long? Many people in this county don’t even have grass—they have weeds that they knock down. At four bucks a gallon, so what? Let it grow! What’s it going to hurt?”

Because of outcry from some residents, the commissioners will likely discuss the code at the March 26 meeting at 9 am. If one of the commissioners who voted for the law makes a motion to rescind his or her vote, and four other commissioners follow suit, the law may be repealed.

If the law remains in effect, it will be up to building official Bert Gale, on a complaints-made basis, to determine which violations he will issue citations for.

And what exactly will happen to the ? Building? As it stands, it’s clear even without even walking into the building that it violates several sections of the code as written. As do many, many of its neighbors. Ψ


Benzie Ordinance No. 2013-001

Thanks to Eric VanDussen for sending the Benzie Ordinance pdf.

  1. So… are we in trouble for turning our heat down to 63 every night while we’re in bed???

    • Why can’t the “?” building be used as training for the fire departments letting houses burn to the foundation? The unconstitutional code isn’t a reason to pretend there is a zoning standard worth respecting for Benzie.

  2. I agree with Mr. Evans. The new ordinance is an overreach.

    It makes violators out of most homeowners. It appears to ban the composting of vegetable matter from your kitchen. Really?

    It requires rodent shields, storm windows or other approved means to prevent the entry of rodents, regarding basement windows.

    Now the good citizens of Benzie County must have all yard trimmings and tree branches (defined as “rubbish”) removed from their property regardless of the size of the property. By its wording, if you own, lets say a woodlot, and a branch falls from a tree, the branch is now defined as “rubbish” and must be removed according to Section 308.1. Really?

    The ordinance is ripe for litigation since the intent appears to be selective enforcement.

    If anyone receives a notice of violation, please contact me. John B. Daugherty, PLC, Attorney at Law. 231.882.4404.

  3. I will be at the March 26 Commissioners meet and I hope to see the majority of Benzie County residents there with me!! REPEAL THIS ORDINANCE !!

  4. What?????? I don’t even keep mt thermostat at 68 degrees typically. You are going to fine us? Wow. I can’t wait to finish reading this. I hope I have misread, had to look to see if today was April fools day….

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